8-K

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): November 12, 2025

AEON Biopharma, Inc.

(Exact name of registrant as specified in its charter)

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Delaware	001-40021	85-3940478
(State or other jurisdiction<br><br>of incorporation)	(Commission<br><br>File Number)	(IRS Employer<br><br>Identification Number)

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5 Park Plaza

Suite 1750

Irvine , CA **** 92614

(Address of principal executive offices, including Zip Code)

Registrant’s telephone number, including area code: ( 949 ) 354-6499

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☒	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:

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Title of each class		Trading Symbol		Name of each exchange on which registered
Class A Common Stock, $0.0001 par value per share	​	AEON	​	NYSE American

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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☒

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐ ​ ​

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Item 1.01. Entry Into a Material Definitive Agreement .

Securities Purchase Agreement

On November 12, 2025, AEON Biopharma, Inc. (the “Company”) entered into a Securities Purchase Agreement (the “Securities Purchase Agreement”) with certain investors (the “Investors”) whereby the Company will issue and sell to the Investors in a private placement (the “Private Placement”): (i) shares (the “Shares”) of its Class A common stock, par value $0.0001 per share (the “Common Stock”), (ii) pre-funded warrants (the “Pre-Funded Warrants”) to purchase shares of Common Stock, (iii) warrants (the “Warrants”) to purchase shares of Common Stock, and (iv) True-Up Warrants (as defined below) to purchase shares of Common Stock. The purchase price to be paid by the Investors will be $0.9116 per Share (or $0.9115 per Pre-Funded Warrant in lieu of Shares).

The first closing of the Private Placement is expected to occur the week of November 17, 2025 (the “First Closing”). At the First Closing, subject to customary closing conditions set forth in the Securities Purchase Agreement, the Company expects to issue and sell 1,964,905 Shares (or Pre-Funded Warrants in lieu of Shares).

The second closing of the Private Placement (the “Second Closing”) is subject to stockholder approval (the “Stockholder Approval”) in accordance with the rules of the NYSE American, consummation of the Exchange (defined below) contemplated by the Term Sheet (defined below) with Daewoong (defined below), and other customary closing conditions set forth in the Securities Purchase Agreement. At the Second Closing, the Company expects to issue and sell 4,616,924 Shares (or Pre-Funded Warrants in lieu of Shares) and 6,581,829 Warrants.

Following the Second Closing and the consummation of the Exchange, the Company has agreed to issue to each Investor that purchases all securities contemplated to be purchased by it pursuant to the Securities Purchase Agreement, a warrant (the “True-Up Warrant)” to purchase the number of shares of Common Stock necessary for the Investor’s Post-Exchange Investment Percentage (as defined in the Securities Purchase Agreement) following the issuance of the Exchange Shares (defined below) to be equal to the Investor’s Pre-Exchange Investment Percentage (as defined in the Securities Purchase Agreement) (rounded down to the nearest whole share of Common Stock), provided, however, that in no event shall the number of shares of Common Stock issuable under an Investor’s True-Up Warrant exceed the total number of Shares or Pre-Funded Warrant Shares (as defined below) issued or issuable to an Investor pursuant to the Securities Purchase Agreement.

Subject to the terms and conditions therein, the Securities Purchase Agreement also grants to the Investors, until such time as the earlier of (i) the date that no Warrants remain outstanding and (ii) the 18-month anniversary of the Second Closing, a right to participate in any financing not registered under the Securities Act and involving the issuance by the Company of Common Stock or Common Stock equivalents for cash.

The Securities Purchase Agreement contains customary representations, warranties and agreements by the Company and the Investors, which were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties.

The foregoing description of the terms of the Securities Purchase Agreement does not purport to be complete and is qualified in its entirety by the full text of the Securities Purchase Agreement, which is attached hereto as Exhibit 10.1 and incorporated by reference herein.

Terms of the Pre-Funded Warrants, Warrants and True-Up Warrants

The Pre-Funded Warrants are being offered in lieu of shares of Common Stock and each Pre-Funded Warrant is exercisable for one share of Common Stock at an exercise price of $0.0001 per share. The Pre-Funded Warrants are immediately exercisable after issuance and may be exercised at any time until all of the Pre-Funded Warrants are exercised in full.

Each Warrant will be exercisable for the number of Shares or Pre-Funded Warrants purchased by each Investor under the Securities Purchase Agreement (but excluding any shares issuable upon the exercise of the True-Up Warrants), at an exercise price of $1.09392 per share and may only be exercised for cash. The Warrants will be immediately exercisable after issuance and will be able to be exercised at any time until the five-year anniversary of the Second Closing.

Each True-Up Warrant will be exercisable for one share of Common Stock at an exercise price of $0.0001 per share. The True-Up Warrants will be immediately exercisable after issuance and will be able to be exercised at any time until all of the True-Up Warrants are exercised in full.

The exercise prices and the number of shares issuable upon exercise of the Pre-Funded Warrants, Warrants and True-Up Warrants are subject to customary adjustments in the case of stock dividends, stock splits, pro rata distributions, and similar events in respect of the Common Stock. In addition, the number of shares of the Common Stock underlying, and the exercise price of, the Warrants is subject to full ratchet antidilution protection and standard adjustments in the event of a share split, reverse share split, share dividend, share combination recapitalization or other similar transaction involving the Common Stock; provided, however, that in no event will the exercise price of the Warrants equal less than $0.30387 per share of Common Stock.

A holder (together with its affiliates) of the Pre-Funded Warrants, Warrants or True-Up Warrants may not exercise any portion of the Pre-Funded Warrants, Warrants or True-Up Warrants to the extent that the holder would own more than 9.99% of the Company’s outstanding Common Stock immediately after exercise, which percentage may be changed at the holder’s election to a lower or higher percentage not in excess of 19.99% upon 61 days’ notice to the Company subject to the terms of the Pre-Funded Warrants, Warrants or True-Up Warrants.

The foregoing descriptions of the terms and conditions of the Pre-Funded Warrants, Warrants and True-Up Warrants do not purport to be complete and are qualified in their entirety by the full text of the form of Pre-Funded Warrants, Warrants and True-Up Warrant, which are attached hereto as Exhibits 4.1, 4.2 and 4.3, respectively, and are incorporated by reference herein.

Registration Rights Agreement

In connection with the Private Placement, the Company will enter into a Registration Rights Agreement with the Investors (the “Registration Rights Agreement”), pursuant to which the Company will agree to file a registration statement under the Securities Act of 1933, as amended (the “Securities Act”), with the Securities and Exchange Commission (the “SEC”), covering the resale of the Shares and the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants, Warrants and True-Up Warrants no later than 20 days following the earlier of the Second Closing or the termination of the Securities Purchase Agreement after the First Closing and prior to the Second Closing (the “Filing Deadline”), and to use reasonable best efforts to have the registration statement declared effective within a specified period after the Filing Deadline.

The foregoing description of the terms of the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the form of Registration Rights Agreement attached hereto as Exhibit 10.2 and incorporated by reference herein.

Term Sheet for Convertible Note Exchange

On November 12, 2025, the Company entered into a binding term sheet (the “Term Sheet”) with Daewoong Pharmaceutical Co, Ltd. (“Daewoong”) relating to the exchange (the “Exchange”) of the outstanding senior secured convertible notes of the Company held by Daewoong (the “Existing Notes”) for (1) a new senior secured convertible note due 2030 of the Company, in a principal amount of $1.5 million (the “New Note”), (2) a number of shares Common Stock or Pre-Funded Warrants (collectively, the “Exchange Shares”) equal to the result of (i) the current amount due on the Existing Notes (principal plus accrued interest as calculated in accordance with the Existing Notes) less the New Note, being (ii) divided by $1.00 and (iii) then multiplied by 1.3, and (3) warrants (the “Daewoong Warrants”) to purchase 8 million shares of Common Stock. The Company estimates that the number of Exchange Shares will be approximately 23,103,694, assuming the shareholder vote to approve the Exchange occurs on January 15, 2026. The Daewoong Warrants, which will be on the same terms as the Warrants issued in connection with the Private Placement, will also be exercisable at an exercise price of $1.09392 per share and may only be exercised for cash. The Daewoong Warrants will be immediately exercisable after issuance and will be able to be exercised at any time until the five-year anniversary of the Second Closing.

The Company and Daewoong expect to enter into an exchange agreement relating to the Exchange at a later date. The consummation of the Exchange will be subject to stockholder approval in accordance with the rules of the NYSE American and is expected to be subject to other customary closing conditions.

The foregoing description of the terms of the Term Sheet does not purport to be complete and is qualified in its entirety by reference to the full text of the Term Sheet attached hereto as Exhibit 10.3 and incorporated by reference herein.

Item 3.02 Unregistered Sales of Equity Securities.

The information contained above in Item 1.01 relating to the Private Placement and the Exchange is hereby incorporated by reference into this Item 3.02. Based in part upon the representations of the Investors in the Securities Purchase Agreement, the offering and sale of the securities described above are being offered and sold in a private placement under Section 4(a)(2) of the Securities Act, and have not been registered under the Securities Act, or applicable state securities laws. Accordingly, such securities may not be offered or sold in the United States except pursuant to an effective registration statement or an applicable exemption from the registration requirements of the Securities Act and such applicable state securities laws.

Neither this Current Report on Form 8-K nor any exhibit attached hereto is an offer to sell or the solicitation of an offer to buy shares of Common Stock or other securities of the Company.

Forward-Looking Statements

This communication includes “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, as amended. All statements other than statements of historical fact included in this communication regarding the Company’s business strategy, plans, goal, and objectives are forward-looking statements, including without limitation statements regarding the Company’s ability to consummate the Private Placement or Exchange as contemplated by the Securities Purchase Agreement or the exchange agreement. When used in this Current Report, the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “seek,” “budget,” “target,” “aim,” “strategy,” “plan,” “guidance,” “outlook,” “intent,” “may,” “should,” “could,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain such identifying words. These forward-looking statements are based on the Company’s current expectations and assumptions about future events and are based on currently available information as to the outcome and timing of future events. Forward-looking statements are subject to all of the risks and uncertainties, most of which are difficult to predict and many of which are beyond our control. These risks include, but are not limited to the inability to close the proposed Private Placement or Exchange due to the failure to obtain stockholder approval or the failure to satisfy other conditions to closing of the proposed Private Placement or Exchange and other risks and uncertainties set forth in the Company’s filings with the SEC from time to time. Should one or more of these risks or uncertainties occur, or should underlying assumptions prove incorrect, the Company’s actual results and plans could differ materially from those expressed in any forward-looking statements. These risks are not exhaustive and the information in this Current Report may be subject to additional risks. You are cautioned not to place undue reliance on any forward-looking statements, which speak only as to the date of this communication**.**

For additional information regarding these various factors, you should carefully review the risk factors and other disclosures in the Company’s Form 10-K for the fiscal year ended December 31, 2024, filed on March 24, 2025. Any forward-looking statements are given only as of the date hereof. Except as required by law, the Company expressly disclaims any obligation to update or revise any such forward-looking statements. Additionally, the Company undertakes no obligation to comment on third party analyses or statements regarding the Company’s actual or expected financial or operating results or its securities. ****

No Offer or Solicitation

This communication is for informational purposes only and shall not constitute a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the proposed transaction. This communication is not intended to nor does it constitute an offer to sell or purchase, nor a solicitation of an offer to sell, buy or subscribe for any securities, nor is it a solicitation of any vote in any jurisdiction pursuant to the proposed transaction or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law. No offer of securities shall be deemed to be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act, or an exemption therefrom. ****

Additional Information and Where to Find It

This communication may be deemed to be solicitation material in respect of obtaining stockholder approval in connection with the Private Placement and Exchange. In connection with obtaining stockholder approval, the Company expects to file a proxy statement on Schedule 14A and other relevant materials with the SEC. This communication does not constitute a solicitation of any vote or approval. SECURITY HOLDERS OF THE COMPANY ARE URGED TO READ CAREFULLY AND IN THEIR ENTIRETY ALL RELEVANT DOCUMENTS (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO) FILED WITH THE SEC, INCLUDING THE COMPANY’S PROXY STATEMENT, WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE COMPANY, THE SECURITIES PURCHASE AGREEMENT, THE EXCHANGE AGREEMENT, AND THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING THE PRIVATE PLACEMENT AND EXCHANGE. Copies of the proxy statement and other relevant materials and any other documents filed by the Company with the SEC may be obtained free of charge at the SEC’s website, at www.sec.gov. In addition, stockholders may obtain free copies of the proxy statement and other relevant materials through the website maintained by the SEC at http://www.sec.gov. or by directing a request to: AEON Biopharma, Inc., 5 Park Plaza, Suite 1750, Irvine, CA 92614 or via email at investor.relations@aeonbiopharma.com.

Participants in the Solicitation

The Company and its directors and executive officers and other members of management and employees may be deemed to be participants in the solicitation of proxies from the Company’s stockholders in respect of the stockholder approval needed for the Private Placement and the Exchange. Information about the directors and executive officers of the Company is set forth in the Company's Schedule 14A filed with the SEC on April 29, 2025. Other information regarding the persons who may be deemed participants in the proxy solicitations in connection with the Private Placement or Exchange, and a description of any interests that they have in the Private Placement or Exchange, by security holdings or otherwise, will be contained in the proxy statement and other

relevant materials to be filed with the SEC when they become available. Stockholders, potential investors and other interested persons should read the proxy statement carefully when it becomes available before making any voting or investment decisions. You may obtain free copies of these documents from the sources indicated above.

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Item 9.01. Financial Statement and Exhibits.

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(d) Exhibits.

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Exhibit No.		Description
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4.1		Form of Pre-Funded Warrant.
4.2	​	Form of Warrant.
4.3	​	Form of True-Up Warrant.
10.1	​	Securities Purchase Agreement, dated November 12, 2025, by and among AEON Biopharma, Inc. and the several investors signatory thereto.
10.2	​	Form of Registration Rights Agreement to be entered by and among AEON Biopharma, Inc. and the several investors signatory thereto.
10.3	​	Term Sheet, dated November 12, by and between AEON Biopharma, Inc. and Daewoong Pharmaceutical Co., Ltd
104	​	Cover Page Interactive Data File (embedded within the Inline XBRL document)

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SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

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​	AEON Biopharma, Inc.
Date: November 13, 2025	By:	/s/ Robert Bancroft
​	​	Robert Bancroft
​	​	Chief Executive Officer<br><br>​

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Exhibit 10.1

1<br>SECURITIES PURCHASE AGREEMENT<br>This SECURITIES PURCHASE AGREEMENT (this “Agreement”) is dated as of<br>November 12, 2025, by and among AEON Biopharma, Inc, a Delaware corporation (the<br>“Company”), and each of the parties listed on Exhibit A attached to this Agreement (each, an<br>“Investor” and together, the “Investors”).<br>WHEREAS, the Company and the Investors are executing and delivering this Agreement<br>in reliance upon the exemption from securities registration afforded by Section 4(a)(2) of the<br>Securities Act;<br>WHEREAS, contemporaneously with the execution and delivery of this Agreement, the<br>Company has entered into a binding term-sheet with Daewoong Pharmaceutical Co., LTD.<br>(“Daewoong”), attached hereto as Exhibit B (the “Daewoong Term Sheet”), relating to the<br>exchange of the Company’s outstanding senior secured convertible notes held by Daewoong (the<br>“Outstanding Notes”) for a new senior secured convertible note, newly issued shares of the<br>Company’s Class A common stock, par value $0.0001 per share (the “Common Stock”), (or<br>prefunded warrants to purchase Common Stock in lieu of shares), and a warrant to purchase shares<br>of Common Stock, as set forth in the Daewoong Term Sheet (such transaction, the “Daewoong<br>Conversion”).<br>WHEREAS, the Company desires to sell to the Investors, and each Investor desires to<br>purchase from the Company, severally and not jointly, upon the terms and subject to the conditions<br>stated in this Agreement, (A)(i) shares (the “Shares”) of the Common Stock and/or (ii) pre-funded<br>warrants to purchase shares of Common Stock substantially in the form attached hereto as Exhibit<br>C (the “Pre-Funded Warrants”) and (B) warrants to purchase Common Stock substantially in<br>the form attached hereto as Exhibit D (the “Common Warrants” and together with the Pre-Funded Warrants, the “Warrants”); the Shares and the Warrants collectively referred to as the<br>“Securities”); and<br>WHEREAS, contemporaneously with the sale of Securities at the First Closing (as defined<br>below), the parties hereto will execute and deliver a registration rights agreement, substantially in<br>the form attached hereto as Exhibit E (the “Registration Rights Agreement”), pursuant to which<br>the Company will agree to provide certain registration rights in respect of the Shares, Warrant<br>Shares (as defined below) and shares of Common Stock issuable upon exercise of the True-Up<br>Warrants (as defined below) (the “True-Up Shares”) under the Securities Act and applicable state<br>securities laws.<br>NOW THEREFORE, in consideration of the mutual agreements, representations,<br>warranties and covenants herein contained, the Company and each Investor, severally and not<br>jointly, agree as follows:
2<br>1. Definitions. As used in this Agreement, the following terms shall have the<br>following respective meanings:<br>“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly<br>through one or more intermediates, controls, is controlled by or is under common control with<br>such Person.<br>“Agreement” has the meaning set forth in the recitals.<br>“Amended and Restated Bylaws” means the Bylaws of the Company, as currently in<br>effect.<br>“Amended and Restated Certificate of Incorporation” means the Certificate of<br>Incorporation of the Company, as currently in effect.<br>“Benefit Plan” or “Benefit Plans” means employee benefit plans as defined in Section<br>3(3) of ERISA and all other employee benefit practices or arrangements, including, without<br>limitation, any such practices or arrangements providing severance pay, sick leave, vacation pay,<br>salary continuation for disability, retirement benefits, deferred compensation, bonus pay, incentive<br>pay, stock options or other stock-based compensation, hospitalization insurance, medical<br>insurance, life insurance, scholarships or tuition reimbursements, maintained by the Company or<br>to which the Company or any of its subsidiaries is obligated to contribute for employees or former<br>employees of the Company and its subsidiaries.<br>“Board of Directors” means the board of directors of the Company.<br>“Business Day” means any day except any Saturday, any Sunday, any day which is a<br>federal legal holiday in the United States or any day on which banking institutions in the State of<br>New York are authorized or required by law or other governmental action to close.<br>“Closing” means, as the context requires, one or both of the First Closing and the Second<br>Closing.<br>“Closing Date” means, as the context requires, one or both of the First Closing Date and<br>the Second Closing Date.<br>“Code” means the U.S. Internal Revenue Code of 1986, as amended.<br>“Common Stock” has the meaning set forth in the recitals.<br>“Common Stock Equivalents” means any securities of the Company that would entitle<br>the holder thereof to acquire at any time Common Stock, including, without limitation, any debt,<br>preferred stock, rights, options, warrants or other instrument that is at any time convertible into or<br>exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.<br>“Common Warrants” has the meaning set forth in the recitals.<br>“Company” has the meaning set forth in the recitals.
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3<br>“Confidential Data” has the meaning set forth in Section 3.30.<br>“Daewoong” means Daewoong Pharmaceutical Co., Ltd.<br>“Daewoong Conversion” has the meaning set forth in the recitals.<br>“Daewoong Term Sheet” has the meaning set forth in the recitals.<br>“Disclosure Document” has the meaning set forth in Section 5.3.<br>“DGCL” means the Delaware General Corporation Law.<br>“Drug Regulatory Agency” means the U.S. Food and Drug Administration (“FDA”) or<br>other foreign, state, local or comparable governmental authority responsible for regulation of the<br>research, development, testing, manufacturing, processing, storage, labeling, sale, marketing,<br>advertising, distribution and importation or exportation of drug or biological products and drug or<br>biological product candidates.<br>“Exchange Shares” means, collectively shares of Common Stock or pre-funded warrants<br>to purchase shares of Common Stock issued or issuable to Daewoong as a result of the exchange<br>of the Outstanding Notes pursuant to the Daewoong Term Sheet, as further described therein;<br>provided, however, that “Exchange Shares” shall not include any shares of Common Stock<br>issuable upon conversion or exercise of any New Daewoong Note or any New Daewoong Warrant.<br>“Environmental Laws” has the meaning set forth in Section 3.15.<br>“ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as amended.<br>“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and all of<br>the rules and regulations promulgated thereunder.<br>“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended.<br>“Financial Statements” has the meaning set forth in Section 3.8(b).<br>“First Closing” has the meaning set forth in Section 2.2(a).<br>“First Closing Date” has the meaning set forth in Section 2.2(a).<br>“First Closing Purchase Amount” has the meaning set forth in Section 2.2(a).<br>“Fundamental Representations” means the representations and warranties made by the<br>Company in Sections 3.1 (Organization and Power), 3.2 (Capitalization), 3.4 (Authorization), 3.5<br>(Valid Issuance), 3.6 (No Conflict), 3.7 (Consents), 3.8 (SEC Filings; Financial Statements), 3.18<br>(NYSE Stock Market), 3.19 (Sarbanes-Oxley Act), 3.23 (Price Stabilization of Common Stock),<br>3.24 (Investment Company Act), 3.25 (General Solicitation; No Integration or Aggregation), 3.26<br>(Brokers and Finders), 3.27 (Reliance by the Investors), and 3.28 (No Additional Agreements).<br>“GAAP” has the meaning set forth in Section 3.8(b).
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4<br>“GDPR” has the meaning set forth in Section 3.31.<br>“Governmental Authorizations” has the meaning set forth in Section 3.11.<br>“Health Care Laws” has the meaning set forth in Section 3.21.<br>“HIPAA” has the meaning set forth in Section 3.32.<br>“Indemnified Person” has the meaning set forth in Section 5.9.<br>“Intellectual Property” has the meaning set forth in Section 3.12.<br>“Investor” and “Investors” have the meanings set forth in the recitals.<br>“Investment Shares” means, for each Investor, the total Shares to be purchased by an<br>Investor pursuant to this Agreement plus the maximum number of Pre-Funded Warrant Shares<br>issuable upon exercise of Pre-Funded Warrants to be purchased by an Investor pursuant to this<br>Agreement. For the avoidance of doubt, an Investor’s “Investment Shares” shall not include any<br>shares of Common Stock acquired other than pursuant to this Agreement, or any shares of<br>Common Stock issuable upon exercise of any Common Warrants.<br>“IT Systems” has the meaning set forth in Section 3.30.<br>“Material Adverse Effect” means any change, event, circumstance, development,<br>condition, occurrence or effect that, individually or in the aggregate, (a) was, is, or would<br>reasonably be expected to be, materially adverse to the business, financial condition, prospects,<br>properties, assets, liabilities, stockholders’ equity or results of operations of the Company and its<br>subsidiaries, taken as a whole, or (b) materially delays or materially impairs the ability of the<br>Company to comply, or prevents the Company from complying, with its obligations under this<br>Agreement, the other Transaction Agreements, or with respect to the Closing, or would reasonably<br>be expected to do so.<br>“National Exchange” means any of the following markets or exchanges on which the<br>Common Stock is listed or quoted for trading on the date in question, together with any successor<br>thereto: the NYSE American, The New York Stock Exchange, The Nasdaq Global Market, The<br>Nasdaq Global Select Market and The Nasdaq Capital Market.<br>“New Daewoong Note” means any new senior secured convertible note of the Company<br>to be issued to Daewoong in the Daewoong Conversion.<br>“New Daewoong Warrant” means any warrant to purchase Common Stock of the<br>Company to be issued to Daewoong in the Daewoong Conversion on substantially similar terms<br>as the Common Warrants in the form attached hereto as Exhibit D.<br>“OFAC” means the Office of Foreign Assets Control of the U.S. Treasury Department.
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5<br>“Outstanding Notes” has the meaning set forth in the recitals.<br>“Person” means an individual, partnership, corporation, limited liability company,<br>business trust, joint stock company, trust, unincorporated association, joint venture or any other<br>entity or organization.<br>“Personal Data” has the meaning set forth in Section 3.30.<br>“Post-Exchange Investment Percentage” means, for each Investor, the quotient<br>represented by the sum of (a) such Investor’s Investment Shares plus (b) the maximum number of<br>True-Up Shares issuable upon exercise of an Investor’s True-Up Warrant divided by the sum of (i)<br>such Investor’s Investment Shares plus (ii) the other Investors’ Investment Shares (assuming all<br>Shares and Pre-Funded Warrants are purchased in accordance with this Agreement) plus (iii) the<br>total number of shares of Common Stock outstanding immediately prior to the execution of this<br>Agreement plus (iv) the maximum number of Exchange Shares issued or issuable plus (v) the<br>maximum number of True-Up Shares issuable upon exercise of an Investor’s True-Up Warrant.<br>“Pre-Exchange Investment Percentage” means, for each Investor, the percentage set<br>forth on Exhibit A.<br>“Pre-Funded Warrants” has the meaning set forth in the recitals.<br>“Pre-Funded Warrant Price” means $0.9115.<br>“Privacy Laws” has the meaning set forth in Section 3.31.<br>“Privacy Statements” has the meaning set forth in Section 3.31.<br>“Process” or “Processing” has the meaning set forth in Section 3.31.<br>“Registration Rights Agreement” has the meaning set forth in Section 6.1(k).<br>“Regulatory Agencies” has the meaning set forth in Section 3.20.<br>“Requisite Stockholder Approval” has the meaning set forth in Section 5.11 hereof.<br>“Rule 144” means Rule 144 promulgated by the SEC pursuant to the Securities Act, as<br>such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted<br>by the SEC having substantially the same effect as such Rule.<br>“SEC” means the U.S. Securities and Exchange Commission.<br>“SEC Reports” means (a) the Company’s most recently filed Annual Report on Form 10-<br>K and (b) all Quarterly Reports on Form 10-Q and Current Reports on Form 8-K filed or furnished<br>(as applicable) by the Company following the end of the most recent fiscal year for which an<br>Annual Report on Form 10-K has been filed and prior to the execution of this Agreement, together<br>in each case with any documents incorporated by reference therein or exhibits thereto.<br>“Second Closing” has the meaning set forth in Section 2.2(b).
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6<br>“Second Closing Date” has the meaning set forth in Section 2.2(b).<br>“Second Closing Purchase Amount” has the meaning set forth in Section 2.2(b).<br>“Securities” has the meaning set forth in the recitals.<br>“Securities Act” means the U.S. Securities Act of 1933, as amended, and all of the rules<br>and regulations promulgated thereunder.<br>“Share Price” means $.9116.<br>“Shares” has the meaning set forth in the recitals.<br>“Short Sales” include, without limitation, (a) all “short sales” as defined in Rule 200<br>promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and<br>all types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, short sales,<br>swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar<br>arrangements (including on a total return basis), and (b) sales and other transactions through non-U.S. broker dealers or non-U.S. regulated brokers (but shall not be deemed to include the location<br>and/or reservation of borrowable shares of Common Stock).<br>“Stockholder Meeting” has the meaning set forth in Section 5.11 hereof.<br>“Studies” has the meaning set forth in Section 3.20.<br>“Subsequent Financing” has the meaning set forth in Section 5.12.<br>“Tax” or “Taxes” means any and all federal, state, local, foreign and other taxes, levies,<br>fees, imposts, duties and charges of whatever kind (including any interest, penalties or additions<br>to the tax imposed in connection therewith or with respect thereto), whether or not imposed on the<br>Company or its subsidiaries (if any) including, without limitation, taxes imposed on, or measured<br>by, income, franchise, profits or gross receipts, and also ad valorem, value added, sales, use,<br>service, real or personal property, capital stock, license, payroll, withholding, employment, social<br>security, workers’ compensation, unemployment compensation, utility, severance, production,<br>excise, stamp, occupation, premium, windfall profits, transfer and gains taxes and customs duties.<br>“Tax Returns” means returns, reports, information statements and other documentation<br>(including any additional or supporting material) filed or maintained, or required to be filed or<br>maintained, in connection with the calculation, determination, assessment or collection of any Tax<br>and shall include any amended returns required as a result of examination adjustments made by<br>the Internal Revenue Service or other Tax authority.<br>“Trading Day” means a day on which the National Exchange is open for trading.<br>“Transaction Agreements” means this Agreement, the Pre-Funded Warrants, and the<br>Registration Rights Agreement.<br>“Transfer” has the meaning set forth in Section 5.11(g).
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7<br>“Transfer Agent” means, with respect to the Common Stock, Continental Stock Transfer<br>& Trust, Co. or such other financial institution that provides transfer agent services as the Company<br>may engage from time to time.<br>“True-Up Shares” has the meaning set forth in the recitals.<br>“True-Up Warrants” has the meaning set forth in Section 2.3.<br>“VWAP” means, for any date, the price determined by the first of the following clauses<br>that applies: (a) if the Common Stock is then listed or quoted on a National Exchange, the daily<br>volume weighted average price of the Common Stock for such date (or the nearest preceding date)<br>on the National Exchange on which the Common Stock is then listed or quoted as reported by<br>Bloomberg (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York<br>City time)), (b) if OTCQB or OTCQX is not a National Exchange, the volume weighted average<br>price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX<br>as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or<br>OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a<br>similar organization or agency succeeding to its functions of reporting prices), the most recent bid<br>price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of<br>a share of Common Stock as determined by an independent appraiser selected in good faith by the<br>Company, the fees and expenses of which shall be paid by the Company.<br>“Warrant Shares” has the meaning set forth in Section 3.4.<br>“Warrants” has the meaning set forth in the recitals.<br>2. Purchase and Sale of Securities.<br>2.1 Purchase and Sale. On each Closing Date, upon the terms and subject to<br>the conditions set forth herein, the Company agrees to sell, and the Investors, severally and not<br>jointly, agree to purchase, the number and type of Securities, for the aggregate purchase price, set<br>forth opposite the Investor’s name on Exhibit A. The purchase price per Initial Share is equal to<br>the Share Price. The price per Pre-Funded Warrant is equal to the Pre-Funded Warrant Price.<br>2.2 Closings.<br>(a) First Closing. Subject to the satisfaction or waiver of the conditions<br>set forth in Section 6 of this Agreement, the closing of the purchase and sale of the Securities (the<br>“First Closing” and the date on which the First Closing occurs, the “First Closing Date”) shall<br>occur remotely via the exchange of documents and signatures at such time as agreed to by the<br>Company and the Investors but (i) in no event earlier than the second Business Day after the date<br>of this Agreement and (ii) in no event later than the fifth Business Day after the date of this<br>Agreement. At the First Closing, the Securities shall be issued and registered in the name of the<br>Investor, or in such nominee name(s) as designated by such Investor, representing the number of<br>Securities to be purchased by the Investor at such First Closing as set forth in Exhibit A, in each<br>case against payment to the Company of the purchase price therefor (the “First Closing Purchase<br>Amount”) in full, by wire transfer to the Company of immediately available funds, at or prior to<br>the First Closing, in accordance with wire instructions provided by the Company to the Investors
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8<br>at least one Business Day prior to the First Closing. On the First Closing Date, the Company will<br>cause (A) the Transfer Agent to issue the First Closing Shares in book-entry form, free and clear<br>of all restrictive and other legends (except as expressly provided in Section 4.10 hereof) and the<br>Company shall provide evidence of such issuance from the Company’s Transfer Agent as soon as<br>reasonably practical following the First Closing Date to each Investor and (B) deliver to such<br>Investor (or such Investor’s designated custodian per its delivery instructions), or in such nominee<br>name(s) as designated by such Investor, Pre-Funded Warrants exercisable for a number of shares<br>of Common Stock as set forth in Exhibit A with respect to such Investor. In the event that the First<br>Closing has not occurred within two Business Days after the expected First Closing Date, unless<br>otherwise agreed by the Company and such Investor, the Company shall promptly (but no later<br>than one Business Day thereafter) return the previously wired First Closing Purchase Amount to<br>each respective Investor by wire transfer of United States dollars in immediately available funds<br>to the account specified by each Investor, and any book entries for the Securities shall be deemed<br>cancelled; provided that, unless this Agreement has been terminated pursuant to Section 7, such<br>return of funds shall not terminate this Agreement or relieve such Investor of its obligation to<br>purchase, or the Company of its obligation to issue and sell, the Securities at the First Closing or<br>any subsequent Closing.<br>(b) Second Closing. Following the Requisite Stockholder Approval,<br>and subject to the satisfaction or waiver of the conditions set forth in Section 6 of this Agreement,<br>the closing of the purchase and sale of the Securities (the “Second Closing” and the date on which<br>the Second Closing occurs, the “Second Closing Date”) shall occur remotely via the exchange of<br>documents and signatures at such time as agreed to by the Company and the Investors but (i) in no<br>event earlier than the second Business Day after the date of the Requisite Stockholder Approval<br>and (ii) in no event later than the fifth Business Day after the date of the Requisite Stockholder<br>Approval. At the Second Closing, the Securities shall be issued and registered in the name of the<br>Investor, or in such nominee name(s) as designated by such Investor, representing the number of<br>Securities to be purchased by the Investor at such Second Closing as set forth in Exhibit A, in each<br>case against payment to the Company of the purchase price therefor (the “Second Closing<br>Purchase Amount”) in full, by wire transfer to the Company of immediately available funds, at<br>or prior to the Second Closing, in accordance with wire instructions provided by the Company to<br>the Investors at least one Business Day prior to the Second Closing. On the Second Closing Date,<br>the Company will cause (A) the Transfer Agent to issue the Second Closing Shares in book-entry<br>form, free and clear of all restrictive and other legends (except as expressly provided in Section<br>4.10 hereof) and the Company shall provide evidence of such issuance from the Company’s<br>Transfer Agent as soon as reasonably practical following the Second Closing Date to each Investor<br>and (B) deliver to such Investor (or such Investor’s designated custodian per its delivery<br>instructions), or in such nominee name(s) as designated by such Investor, Pre-Funded Warrants<br>and Common Warrants exercisable for a number of shares of Common Stock as set forth in Exhibit<br>A with respect to such Investor. In the event that the Second Closing has not occurred within two<br>Business Days after the expected Second Closing Date, unless otherwise agreed by the Company<br>and such Investor, the Company shall promptly (but no later than one Business Day thereafter)<br>return the previously wired Second Closing Purchase Amount to each respective Investor by wire<br>transfer of United States dollars in immediately available funds to the account specified by each<br>Investor, and any book entries for the Securities shall be deemed cancelled; provided that, unless<br>this Agreement has been terminated pursuant to Section 7, such return of funds shall not terminate
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9<br>this Agreement or relieve such Investor of its obligation to purchase, or the Company of its<br>obligation to issue and sell, the Securities at the Second Closing or any other Closing.<br>2.3 True-Up. Subject to receipt of the Requisite Stockholder Approval, the<br>Company shall issue to each Investor who has purchased all Securities contemplated to be<br>purchased by it pursuant to this Agreement, within three (3) Business Days of the later of (a) the<br>Second Closing and (b) the issuance of the Exchange Shares, a warrant in substantially the form<br>attached hereto as Exhibit F (each, a “True-Up Warrant”) to purchase the number of shares of<br>Common Stock necessary for the Investor’s Post-Exchange Investment Percentage following the<br>issuance of the Exchange Shares to be equal to the Investor’s Pre-Exchange Investment Percentage<br>(rounded down to the nearest whole share of Common Stock), provided, however, that in no event<br>shall the number of True-Up Shares issuable under an Investor’s True-Up Warrant exceed the<br>number of Shares or Pre-Funded Warrant Shares (as defined below) issued or issuable to such<br>Investor pursuant to this Agreement.<br>3. Representations and Warranties of the Company. Except as set forth in the SEC<br>Reports (other than as to the Fundamental Representations, which are not so qualified), the<br>Company hereby represents and warrants to each of the Investors that the statements contained in<br>this Section 3 are true and correct as of the date of this Agreement and as of each Closing Date<br>(except for the representations and warranties that speak as of a specific date, which shall be made<br>as of such date).<br>3.1 Organization and Power. The Company is a corporation duly organized,<br>validly existing and in good standing under the laws of the State of Delaware, has the requisite<br>power and authority to own, lease and operate its properties and to carry on its business as now<br>conducted and described in the SEC Reports. The Company is qualified to do business in each<br>jurisdiction in which the character of its properties or the nature of its business requires such<br>qualification, except where the failure to be so qualified or in good standing would not reasonably<br>be expected to have a Material Adverse Effect. Each of the Company’s subsidiaries is (i) duly<br>incorporated and validly existing and in good standing under the laws of the jurisdiction of its<br>incorporation and has the requisite power and authority to carry on its business as now conducted<br>and to own or lease its properties and (ii) qualified to do business as a foreign corporation and in<br>good standing in each jurisdiction in which such qualification is required, except where the failure<br>to be so qualified or in good standing would not reasonably be expected to have a Material Adverse<br>Effect.<br>3.2 Capitalization. The Company’s disclosure of its authorized, issued and<br>outstanding capital stock in the SEC Reports containing such disclosure was accurate in all<br>material respects as of the date indicated in such SEC Reports. The capitalization of the Company<br>as of the date hereof (other than shares reserved or awards granted under employee benefit plans,<br>which are set forth in the SEC Reports) is set forth on Schedule 3.2, which shall also set forth, for<br>each class or series of outstanding or convertible securities of the Company (including the<br>Outstanding Notes), the number and type of such securities issued and outstanding, the number of<br>shares of Common Stock into or for which such securities are currently convertible, exercisable or<br>exchangeable (as applicable), and the conversion or exercise price thereof. Except as set forth on<br>Schedule 3.2, the Company has not issued any capital stock since its most recently filed periodic<br>report under the Exchange Act, other than pursuant to employee plans or the conversion or exercise
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10<br>of outstanding Common Stock Equivalents. All of the issued and outstanding shares of Common<br>Stock have been duly authorized and validly issued and are fully paid and non-assessable. None<br>of the outstanding shares of capital stock of the Company were issued in violation of any<br>preemptive or other similar rights of any securityholder of the Company which have not been<br>waived, and such shares were issued in compliance in all material respects with applicable state<br>and federal securities law, and in compliance with any rights of third parties. Except as set forth<br>on Schedule 3.2, there are no outstanding rights (including, without limitation, pre-emptive rights),<br>warrants or options to acquire, or instruments convertible into or exchangeable for, any shares of<br>capital stock or other equity interest in the Company or any of its subsidiaries, or any contract,<br>commitment, agreement, understanding or arrangement of any kind relating to the issuance of any<br>capital stock of the Company or any such subsidiary, any such convertible or exchangeable<br>securities or any such rights, warrants or options. Other than as set forth on Schedule 3.2 or as<br>contemplated herein, no Person (other than the Investors) has any right of first refusal, pre-emptive<br>right, right of participation or any similar right to participate in the transactions contemplated by<br>the Transaction Agreements. and there are no outstanding options, warrants, scrip, rights to<br>subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or<br>obligations convertible into or exercisable or exchangeable for, or giving any Person any right to<br>subscribe for or acquire, any shares of Common Stock or the capital stock of any subsidiary, or<br>contracts or arrangements by which the Company or any subsidiary is or may become bound to<br>issue additional shares of Common Stock or Common Stock Equivalents. The issuance and sale<br>of the Securities will not obligate the Company or any Subsidiary to issue shares of Common Stock<br>or other securities to any Person (other than the Investors). Except as set forth on Schedule 3.2 or<br>as contemplated herein, there are no outstanding securities or instruments of the Company or any<br>Subsidiary that contain any redemption, anti-dilution, reset or similar provisions or that require the<br>Company or any Subsidiary to redeem or repurchase any security. The Company does not have<br>any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or<br>agreement. The capital stock of the Company conforms in all material respects to the description<br>thereof contained in the SEC Reports; and all the outstanding shares of capital stock or other equity<br>interests of each subsidiary owned, directly or indirectly, by the Company have been duly and<br>validly authorized and issued, are fully paid and non-assessable (except, in the case of any foreign<br>subsidiary, for directors’ qualifying shares) and are owned directly or indirectly by the Company,<br>free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer<br>or any other claim of any third party. Except as set forth on Schedule 3.2 or as otherwise<br>contemplated herein, there are no stockholder, voting or similar agreements with respect to the<br>Company’s capital stock to which the Company is a party or, to the knowledge of the Company,<br>between or among any of the Company’s stockholders.<br>3.3 Registration Rights. Except as set forth in the Transaction Agreements or<br>as disclosed in the SEC Reports, the Company is presently not under any obligation, and has not<br>granted any rights, to register under the Securities Act any of the Company’s presently outstanding<br>securities or any of its securities that may hereafter be issued, other than such rights and obligations<br>that have expired or been satisfied or waived.<br>3.4 Authorization. The Company has all requisite corporate power and<br>authority to enter into the Transaction Agreements and to carry out and perform its obligations<br>under the terms of the Transaction Agreements, including the issuance and sale of the Securities<br>and the issuance of the shares of Common Stock issuable upon exercise of the Pre-Funded
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11<br>Warrants (the “Pre-Funded Warrant Shares”) and of the Common Warrants (collectively with<br>the Pre-Funded Warrant Shares, the “Warrant Shares”) and the issuance of any True-Up<br>Warrants or True-Up Shares. Except for the Requisite Stockholder Approval, all corporate action<br>on the part of the Company, its officers, directors and stockholders necessary for the authorization<br>of the Shares, the Warrant Shares and the True-Up Shares, the authorization, execution, delivery<br>and performance of the Transaction Agreements and the consummation of the transactions<br>contemplated herein, including the issuance and sale of the Securities and the Warrant Shares, and<br>the True-Up Warrants and True-Up Shares, has been taken, including, without limitation, the<br>approval of the Board of Directors (or a committee thereof) in accordance with of the DGCL This<br>Agreement has been duly executed and delivered by the Company and, assuming the due<br>authorization, execution and delivery by each Investor of this Agreement and that this Agreement<br>constitutes the legal, valid and binding agreement of each Investor, this Agreement and each of<br>the Warrants constitutes a legal, valid and binding obligation of the Company, enforceable against<br>the Company in accordance with its terms, except as such enforceability may be limited by<br>bankruptcy, insolvency, reorganization, moratorium and similar laws relating to or affecting<br>creditors generally or by general equity principles (regardless of whether such enforceability is<br>considered in a proceeding in equity or at law). Upon its execution by the Company and the other<br>parties thereto and assuming that it constitutes legal, valid and binding agreements of the other<br>parties thereto, the Registration Rights Agreement will constitute a legal, valid and binding<br>obligation of the Company, enforceable against the Company in accordance with its terms, except<br>as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and<br>similar laws relating to or affecting creditors generally or by general equity principles (regardless<br>of whether such enforceability is considered in a proceeding in equity or at law).<br>3.5 Valid Issuance. The Shares being purchased by the Investors hereunder<br>have been duly and validly authorized and, upon issuance pursuant to the terms of this Agreement<br>against full payment therefor in accordance with the terms of this Agreement, will be duly and<br>validly issued, fully paid and non-assessable and will be issued free and clear of any liens or other<br>restrictions (other than those as provided in the Transaction Agreements or restrictions on transfer<br>under applicable state and federal securities laws), and the holder of the Shares shall be entitled to<br>all rights accorded to a holder of Common Stock. The Warrant Shares have been duly and validly<br>authorized and reserved for issuance and, upon issuance pursuant to the terms of the Warrants<br>against full payment therefor in accordance with the terms of the Warrants, will be duly and validly<br>issued, fully paid and non-assessable and will be issued free and clear of any liens or other<br>restrictions (other than those as provided in the Transaction Agreements or restrictions on transfer<br>under applicable state and federal securities laws), and the holder of the Warrant Shares shall be<br>entitled to all rights accorded to a holder of Common Stock. The True-Up Shares have been duly<br>and validly authorized and reserved for issuance and, upon issuance pursuant to the terms of the<br>True-Up Warrants against full payment therefor in accordance with the terms of the True-Up<br>Warrants, will be duly and validly issued, fully paid and non-assessable and will be issued free<br>and clear of any liens or other restrictions (other than those as provided in the Transaction<br>Agreements or restrictions on transfer under applicable state and federal securities laws), and the<br>holder of the True-Up Shares shall be entitled to all rights accorded to a holder of Common Stock.<br>The issuance and delivery of the Shares, the Warrants or the True-Up Warrants does not, and the<br>exercise in full of the Warrants or True-Up Warrants and the issuance and delivery of the Warrant<br>Shares or the True-Up Shares thereupon will not, (a) obligate the Company to offer to issue, or<br>issue, shares of Common Stock or other securities to any Person (other than the Investors) pursuant
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12<br>to any preemptive rights, rights of first refusal, rights of participation or similar rights, or (b) result<br>in any adjustment (automatic, at the election of any Person or otherwise) of the exercise,<br>conversion, exchange or reset price under, or any other anti-dilution adjustment pursuant to, any<br>outstanding securities of the Company. Subject to the accuracy of the representations and<br>warranties made by the Investors in Section 4, the offer and sale of the Securities and the True-Up<br>Warrants to the Investors is, and will be, (i) exempt from the registration and prospectus delivery<br>requirements of the Securities Act and (ii) exempt from (or otherwise not subject to) the<br>registration and qualification requirements of applicable securities laws of the states of the United<br>States.<br>3.6 No Conflict. The execution, delivery and performance of the Transaction<br>Agreements by the Company, the issuance and sale of the Securities and the consummation of the<br>other transactions contemplated by the Transaction Agreements (including the issuance of any<br>True-Up Warrants or True-Up Shares) will not (i) violate any provision of the Amended and<br>Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company or any<br>subsidiary’s organizational or charter documents, (ii) conflict with or result in a violation of or<br>default (with or without notice or lapse of time, or both) under, result in the creation or imposition<br>of any lien upon any property or asset of the Company or any subsidiary, or give to others any<br>rights of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation<br>(with or without notice or lapse of time or both) of any agreement or instrument, credit facility,<br>franchise, license, judgment, order, statute, law, ordinance, rule or regulations, applicable to the<br>Company or any of its subsidiaries or their respective properties or assets, or (iii) result in a<br>violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of<br>any court or governmental authority to which the Company or any of its subsidiaries is subject<br>(including federal and state securities laws and regulations) and the rules and regulations of any<br>self-regulatory organization to which the Company or its securities are subject, or by which any<br>property or asset of the Company or any of its subsidiaries is bound or affected, except, in the case<br>of clauses (ii) and (iii), as would not, individually or in the aggregate, be reasonably expected to<br>have a Material Adverse Effect.<br>3.7 Consents. Assuming the accuracy of the representations and warranties of<br>each Investor set forth in Section 4 hereof, no consent, approval, authorization, filing with or order<br>of or registration with, any court or governmental agency or body is required in connection with<br>the authorization, execution or delivery by the Company of the Transaction Agreements, the<br>issuance and sale of the Securities and the performance by the Company of its other obligations<br>under the Transaction Agreements (including the issuance of any True-Up Warrants or True-Up<br>Shares), except (a) as have been or will be obtained or made under the Securities Act or the<br>Exchange Act, (b) the filing of any requisite notices and/or application(s) to the National Exchange<br>for the issuance and sale of the Shares, the Warrant Shares or the True-Up Shares and the listing<br>of the Shares, the Warrant Shares or the True-Up Shares for trading or quotation, as the case may<br>be, thereon in the time and manner required thereby, (c) customary post-closing filings with the<br>SEC or pursuant to state securities laws in connection with the offer and sale of the Shares or the<br>Warrant Shares by the Company in the manner contemplated herein, which will be filed on a timely<br>basis, (d) the filing of the registration statement required to be filed by the Registration Rights<br>Agreement, or (e) such that the failure of which to obtain would not have a Material Adverse<br>Effect. All notices, consents, authorizations, orders, filings and registrations which the Company<br>is required to deliver or obtain prior to the First Closing or Second Closing, as applicable, pursuant
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13<br>to the preceding sentence have been obtained or made or will be delivered or obtained or effected,<br>and shall remain in full force and effect, on or prior to the First Closing or Second Closing, as<br>applicable.<br>3.8 SEC Filings; Financial Statements.<br>(a) The Company has filed all forms, statements, certifications, reports<br>and documents required to be filed by it with the SEC under Section 13, 14(a) and 15(d) of the<br>Exchange Act for the one year preceding the date of this Agreement (or such shorter period as the<br>Company was required by law or regulation to file such material) on a timely basis or has received a<br>valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such<br>extension. As of the time it was filed with the SEC (or, if amended or superseded by a filing prior<br>to the date of this Agreement, then on the date of such filing), each of the filed SEC Reports<br>complied in all material respects with the applicable requirements of the Exchange Act and the<br>Securities Act, as applicable, and, as of the time they were filed, none of the filed SEC Reports<br>contained any untrue statement of a material fact or omitted to state a material fact required to be<br>stated therein or necessary in order to make the statements therein, in light of the circumstances<br>under which they were made, not misleading. There are no outstanding or unresolved comments<br>from the SEC staff with respect to the SEC Reports. To the Company’s knowledge, none of the<br>SEC Reports are the subject of an ongoing SEC review. The interactive data in eXtensible<br>Business Reporting Language included in the SEC Reports fairly presents the information called<br>for in all material respects and has been prepared in accordance with the SEC’s rules and guidelines<br>applicable thereto.<br>(b) The consolidated financial statements of the Company included in<br>the SEC Reports (collectively, the “Financial Statements”) comply in all material respects with<br>applicable accounting requirements and the rules and regulations of the SEC with respect thereto<br>as in effect at the time of filing (or to the extent corrected by a subsequent restatement) and fairly<br>present in all material respects the consolidated financial position of the Company and its<br>subsidiaries as of the dates indicated, and the results of its operations and cash flows for the periods<br>therein specified, and have been prepared in accordance with United States generally accepted<br>accounting principles (“GAAP”) applied on a consistent basis throughout the periods therein<br>specified ((except as otherwise noted therein, and except that any unaudited financial statements<br>may not contain certain footnotes and are subject to normal and recurring year-end adjustments).<br>Except as set forth in the Financial Statements filed prior to the date of this Agreement, the<br>Company has not incurred any liabilities, contingent or otherwise, except (i) those incurred in the<br>ordinary course of business, consistent with past practices since the date of such financial<br>statements or (ii) liabilities not required under GAAP to be reflected in the Financial Statements,<br>in either case, none of which, individually or in the aggregate, have had or would reasonably be<br>expected to have a Material Adverse Effect.<br>3.9 Absence of Changes.<br>(a) Since December 31, 2024, (i) the Company and its subsidiaries has<br>conducted their respective businesses only in the ordinary course of business and there have been<br>no material transactions entered into by the Company or any of its subsidiaries (except for the<br>execution and performance of this Agreement and the discussions, negotiations and transactions
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14<br>related thereto); (ii) no material change to any material contract or arrangement by which the<br>Company or any of its subsidiaries is bound or to which any of its assets or properties is subject<br>has been entered into that has not been disclosed in the SEC Reports; and (iii) there has not been<br>any other event or condition of any character that has had or would reasonably be expected to have<br>a Material Adverse Effect.<br>(b) Since the date of the latest audited financial statements included in<br>the SEC Reports, (i) the Company has not incurred any liabilities (contingent or otherwise) other<br>than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent<br>with past practice and (B) liabilities not required under GAAP to be reflected in the Company’s<br>financial statements or disclosed in its filings with the SEC; (ii) the Company has not altered its<br>method of accounting; (iii) the Company has not declared or made any dividend or distribution of<br>cash or other property to its stockholders or purchased, redeemed or made any agreements to<br>purchase or redeem any shares of its capital stock; and (iv) the Company has not issued any equity<br>securities to any officer, director or Affiliate, except pursuant to existing long-term incentive plans.<br>Except for the issuance of the Securities contemplated by this Agreement or as set forth in Schedule<br>3.9(b), no event, liability, fact, circumstance or development has occurred or exists with respect to<br>the Company or its subsidiaries or their respective businesses, properties or financial condition<br>that would be required to be disclosed by the Company under applicable securities laws at the time<br>this representation is made that has not been publicly disclosed in the SEC Reports at least one<br>Trading Day prior to the date hereof.<br>3.10 Absence of Litigation. Except as disclosed in the SEC Reports, there is no<br>action, suit, proceeding, arbitration, claim, investigation, charge, complaint or inquiry pending or,<br>threatened in writing against the Company or any of its subsidiaries which, individually or in the<br>aggregate, has had or would reasonably be expected to have a Material Adverse Effect, nor are<br>there any orders, writs, injunctions, judgments or decrees outstanding of any court or government<br>agency or instrumentality and binding upon the Company or any of its subsidiaries that have had<br>or would reasonably be expected to have a Material Adverse Effect. There has not been, and to the<br>knowledge of the Company, there is not pending or contemplated, any investigation by the SEC<br>involving the Company or any current or former director or officer of the Company. The SEC has<br>not issued any stop order or other order suspending the effectiveness of any registration statement<br>filed by the Company or any subsidiary under the Exchange Act or the Securities Act.<br>3.11 Compliance with Law; Permits. Neither the Company nor any of its<br>subsidiaries is in violation of, or has received any notices of violations with respect to, any laws,<br>statutes, ordinances, rules or regulations of any governmental body, court or government agency<br>or instrumentality, except for violations which, individually or in the aggregate, have not had and<br>would not reasonably be expected to have a Material Adverse Effect. The Company and its<br>subsidiaries have all required licenses, permits, certificates and other authorizations (collectively,<br>“Governmental Authorizations”) from such federal, state or local government or governmental<br>agency, department or body that are currently necessary for the operation of the business of the<br>Company and its subsidiaries as currently conducted, except where the failure to possess currently<br>such Governmental Authorizations has not had and is not reasonably expected to have a Material<br>Adverse Effect. Neither the Company nor any subsidiary has received any written (or, to the<br>Company’s knowledge, oral) notice regarding any revocation or material modification of any such<br>Governmental Authorization, which, individually or in the aggregate, if the subject of an
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15<br>unfavorable decision, ruling or finding, has or would reasonably be expected to result in a Material<br>Adverse Effect.<br>3.12 Intellectual Property. The Company and its subsidiaries own, or have rights<br>to use, all material inventions, patent applications, patents, trademarks, trade names, service<br>names, service marks, copyrights, trade secrets, know how (including unpatented and/or<br>unpatentable proprietary of confidential information, systems or procedures) and other intellectual<br>property as described in the SEC Reports necessary for, or used in the conduct of their respective<br>businesses (including as described in the SEC Reports) (collectively, “Intellectual Property”),<br>except where any failure to own, possess or acquire such Intellectual Property has not had, and<br>would not, individually or in the aggregate, reasonably be expected to have a Material Adverse<br>Effect. The Intellectual Property of the Company and its subsidiaries has not been adjudged by a<br>court of competent jurisdiction to be invalid or unenforceable, in whole or in part. To the<br>Company’s knowledge: (i) there are no third parties who have rights to any Intellectual Property,<br>including no liens, security interests, or other encumbrances; and (ii) there is no infringement by<br>third parties of any Intellectual Property, except, in each case, which, individually or in the<br>aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect.<br>No action, suit, or other proceeding is pending, or, to the Company’s knowledge, is threatened:<br>(A) challenging the Company’s or its subsidiaries’ rights in or to any Intellectual Property; (B)<br>challenging the validity, enforceability or scope of any Intellectual Property; or (C) alleging that<br>the Company or any of its subsidiaries infringes, misappropriates, or otherwise violates any patent,<br>trademark, trade name, service name, copyright, trade secret or other proprietary rights of others,<br>except, in each case, which, individually or in the aggregate, have not had and would not<br>reasonably be expected to have a Material Adverse Effect. The Company and its subsidiaries have<br>complied in all material respects with the terms of each agreement pursuant to which Intellectual<br>Property has been licensed to the Company or any of its subsidiaries in all material respects, and<br>to the Company’s knowledge all such agreements are in full force and effect. To the Company’s<br>knowledge, there are no material defects in any of the patents or patent applications included in<br>the Intellectual Property. The Company and its subsidiaries have taken all reasonable steps to<br>protect, maintain and safeguard their Intellectual Property.<br>3.13 Employee Benefits. Except as would not be reasonably likely to result in a<br>Material Adverse Effect, each Benefit Plan has been established and administered in accordance<br>with its terms and in compliance with the applicable provisions of ERISA, the Code, the Patient<br>Protection and Affordable Care Act of 2010, as amended, and other applicable laws, rules and<br>regulations. The Company and its subsidiaries are in compliance with all applicable federal, state<br>and local laws, rules and regulations regarding employment, except for any failures to comply that<br>are not reasonably likely, individually or in the aggregate, to have a Material Adverse Effect.<br>There is no labor dispute, strike or work stoppage against the Company or its subsidiaries pending<br>or, to the knowledge of the Company, threatened which may interfere with the business activities<br>of the Company, except where such dispute, strike or work stoppage is not reasonably likely,<br>individually or in the aggregate, to have a Material Adverse Effect.<br>3.14 Taxes. The Company and its subsidiaries have filed all federal, state and<br>foreign income Tax Returns and other Tax Returns required to have been filed under applicable<br>law (or extensions have been duly obtained) and have paid all Taxes required to have been paid<br>by them, except for those which are being contested in good faith and except where failure to file
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16<br>such Tax Returns or pay such Taxes would not, individually or in the aggregate, reasonably be<br>expected to have a Material Adverse Effect. No assessment in connection with United States<br>federal tax returns has been made against the Company. The charges, accruals and reserves on the<br>books of the Company in respect of any income and corporation tax liability for any years not<br>finally determined are adequate to meet any assessments or reassessments for additional income<br>tax for any years not finally determined, except to the extent of any inadequacy that would not<br>result in a Material Adverse Effect. No audits, examinations, or other proceedings with respect to<br>any material amounts of Taxes of the Company and its subsidiaries are presently in progress or<br>have been asserted or proposed in writing without subsequently being paid, settled or withdrawn.<br>There are no liens on any of the assets of the Company. At all times since inception to July 21,<br>2023, the Company was, to its knowledge, classified as a corporation for U.S. federal income tax<br>purposes, and at all times since July 21, 2023, the Company has been and continues to be classified<br>as a corporation for U.S. federal income tax purposes. At all times since inception to July 21, 2023,<br>to the Company’s knowledge, neither the Company nor any of its subsidiaries was a United States<br>real property holding corporation within the meaning of Code Section 897(c)-2 during the period<br>specified in Code Section 897(c)(1)(A)(ii). At all times since July 21, 2023, neither the Company<br>nor any of its subsidiaries has been a United States real property holding corporation within the<br>meaning of Code Section 897(c)-2 during the period specified in Code Section 897(c)(1)(A)(ii).<br>3.15 Environmental Laws. The Company and its subsidiaries (i) are in<br>compliance with any and all applicable foreign, federal, state and local laws and regulations<br>relating to the protection of human health and safety, the environment or hazardous or toxic<br>substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received all<br>permits and other Governmental Authorizations required under applicable Environmental Laws to<br>conduct their business and (iii) are in compliance with all terms and conditions of any such permit,<br>license or approval, except where such noncompliance with Environmental Laws, failure to<br>receive required permits, licenses or other approvals or failure to comply with the terms and<br>conditions of such permits, licenses or approvals would not, individually or in the aggregate,<br>reasonably be expected to have a Material Adverse Effect. None of the Company nor any of its<br>subsidiaries has received since January 1, 2025, any written notice or other communication (in<br>writing or otherwise), whether from a governmental authority or other Person, that alleges that the<br>Company or any subsidiary is not in compliance with any Environmental Law and, to the<br>knowledge of the Company, there are no circumstances that may prevent or interfere with the<br>Company’s or any subsidiary’s compliance in any material respects with any Environmental Law<br>in the future, except where such failure to comply would not reasonably be expected to have a<br>Material Adverse Effect. To the knowledge of the Company: (i) no current or (during the time a<br>prior property was leased or controlled by the Company) prior property leased or controlled by the<br>Company or any subsidiary has received since January 1, 2025, any written notice or other<br>communication relating to property owned or leased at any time by the Company, whether from a<br>governmental authority, or other Person, that alleges that such current or prior owner or the<br>Company or any subsidiary is not in compliance with or violated any Environmental Law relating<br>to such property and (ii) the Company has no material liability under any Environmental Law.<br>3.16 Title. Each of the Company and its subsidiaries has good and marketable<br>title to all personal property owned by it that is material to the business of the Company, free and<br>clear of all liens, encumbrances and defects except such as do not materially and adversely affect<br>the value of such property and do not materially and adversely interfere with the use made and
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17<br>proposed to be made of such property by the Company or its subsidiaries, as the case may be. Any<br>real property and buildings held under lease by the Company or its subsidiaries is held under valid,<br>subsisting and enforceable leases with such exceptions as are not material and do not interfere with<br>the use made and proposed to be made of such property and buildings by the Company or its<br>subsidiaries, as the case may be. The Company does not own any real property.<br>3.17 Insurance. The Company and its subsidiaries carry or are entitled to the<br>benefits of insurance from insurers of recognized financial responsibility in such amounts and<br>covering such risks as are prudent and customary in the businesses in which the Company and its<br>subsidiaries are engaged, and such insurance is adequate for the conduct of its business and the<br>value of its real and personal properties (owned or leased) and tangible assets. Such insurance<br>includes, without limitation, directors’ and officers’ liability insurance coverage with limits at least<br>equal to the aggregate value of the Investor’s investment. Each such insurance policy is in full<br>force and effect and the Company is in compliance in all material respects with the terms of such<br>insurance policies. Other than customary end-of-policy notifications from insurance carriers, since<br>January 1, 2025, the Company has not received any notice or other communication regarding any<br>actual or possible: (i) cancellation or invalidation of any material insurance policy or (ii) refusal<br>or denial of any coverage, reservation of rights or rejection of any material claim under any<br>insurance policy. Neither the Company nor any subsidiary has any reason to believe that it will not<br>be able to renew its existing insurance coverage as and when such coverage expires or to obtain<br>similar coverage from similar insurers as may be necessary to continue its business without a<br>material increase in cost.<br>3.18 Stock Market. The issued and outstanding shares of Common Stock are<br>registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the NYSE<br>American under the symbol “AEON”. Except as disclosed in the SEC Reports, the Company is in<br>compliance with all listing requirements of the NYSE American applicable to the Company.<br>Except as disclosed in the SEC Reports, as of the date of this Agreement, there is no suit, action,<br>proceeding or investigation pending or, to the knowledge of the Company, threatened against the<br>Company by the NYSE American or the SEC, respectively, to prohibit or terminate the listing of<br>the Common Stock on the NYSE American or to deregister the Common Stock under the<br>Exchange Act. The Company has taken no action as of the date of this Agreement that is designed<br>to terminate the registration of the Common Stock under the Exchange Act.<br>3.19 Sarbanes-Oxley Act. The Company is, and since January 1, 2025 has been,<br>in compliance in all material respects with all applicable requirements of the Sarbanes-Oxley Act<br>of 2002 and applicable rules and regulations promulgated by the SEC thereunder.<br>3.20 Clinical Data and Regulatory Compliance. Except as would not reasonably<br>be expected to result in a Material Adverse Effect: (i) the preclinical tests and clinical trials and<br>other studies used to support regulatory approval (collectively, “Studies”) being conducted by or<br>on behalf of, or sponsored by, the Company or its subsidiaries that are described in, or the results<br>of which are referred to in, the SEC Reports were (and, if still pending, are being) conducted in<br>accordance with the protocols, procedures and controls designed and approved for such Studies<br>and with standard medical and scientific research procedures; (ii) each description of the results of<br>such Studies is accurate and complete and fairly presents the data derived from such Studies, and<br>the Company and its subsidiaries have no knowledge of any other studies the results of which are
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18<br>inconsistent with, or otherwise call into question, the results described or referred to in the SEC<br>Reports; (iii) the Company and its subsidiaries have made all such filings and obtained all such<br>approvals as may be required by the FDA or from any other U.S. federal, state or local government<br>or foreign government or Drug Regulatory Agency, or Institutional Review Board, each having<br>jurisdiction over biopharmaceutical products (collectively, the “Regulatory Agencies”) for the<br>conduct of its business as described in the SEC Reports; (iv) neither the Company nor any of its<br>subsidiaries has received any notice of, or correspondence from, any of the Regulatory Agencies<br>requiring the termination or suspension of or imposing any clinical hold on any clinical trials that<br>are described or referred to in the SEC Reports; and (v) the Company and its subsidiaries have<br>each operated and currently are in compliance with all applicable rules, regulations and policies of<br>the Regulatory Agencies.<br>3.21 Compliance with Health Care Laws. The Company and its subsidiaries are<br>in compliance in all material respects with all Health Care Laws to the extent applicable to the<br>current business of the Company and its subsidiaries or any of their respective activities. For<br>purposes of this Agreement, “Health Care Laws” means: (i) the Federal Food, Drug, and<br>Cosmetic Act (21 U.S.C. Section 301 et seq.) and the Public Health Service Act (42 U.S.C. Section<br>201 et seq.), and the regulations promulgated thereunder; (ii) all applicable federal, state, local and<br>foreign health care fraud and abuse laws, including, without limitation, the Anti-Kickback Statute<br>(42 U.S.C. Section 1320a-7b(b)); (iii) HIPAA, as amended by the Health Information Technology<br>for Economic and Clinical Health Act (42 U.S.C. Section 17921 et seq.); (iv) the Patient Protection<br>and Affordable Care Act of 2010, as amended by the Health Care and Education Reconciliation<br>Act of 2010; (v) the European Union (“EU”) Clinical Trials Regulation (Regulation (EU) No.<br>536/2014); (vi) the EU Regulation regarding community procedures for authorization and<br>supervision of medicinal products for human and veterinary use and establishing a European<br>Medicines Agency (Regulation (EC) No. 726/2004); (vii) licensure, quality, safety and<br>accreditation requirements under applicable federal, state, local or foreign laws or regulatory<br>bodies; (viii) all other local, state, federal, national, supranational and foreign laws, relating to the<br>regulation of the Company or its subsidiaries, and (ix) the regulations promulgated pursuant to<br>such statutes and any state or non-U.S. counterpart thereof. Neither the Company nor any of its<br>subsidiaries has received written or, to the Company’s knowledge, oral notice of any claim, action,<br>suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any court or<br>arbitrator or governmental or regulatory authority or third party alleging that any product operation<br>or activity is in material violation of any Health Care Laws nor, to the Company’s knowledge, is<br>any such claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other<br>action threatened. The Company and its subsidiaries have filed, maintained or submitted all<br>material reports, documents, forms, notices, applications, records, claims, submissions and<br>supplements or amendments as required by any Health Care Laws, and all such reports, documents,<br>forms, notices, applications, records, claims, submissions and supplements or amendments were<br>complete and accurate on the date filed in all material respects (or were corrected or supplemented<br>by a subsequent submission). Neither the Company nor any of its subsidiaries is a party to any<br>corporate integrity agreements, monitoring agreements, consent decrees, settlement orders, or<br>similar agreements with or imposed by any governmental or regulatory authority. Additionally,<br>neither the Company nor any of its subsidiaries nor any of their respective employees, officers,<br>directors, or, to the knowledge of the Company, agents has been excluded, suspended or debarred<br>from participation in any U.S. federal health care program or human clinical research or, to the<br>knowledge of the Company, is subject to a governmental inquiry, investigation, proceeding, or
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19<br>other similar action that would reasonably be expected to result in debarment, suspension, or<br>exclusion.<br>3.22 Accounting Controls and Disclosure Controls and Procedures. The<br>Company maintains a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) that is designed to comply with the requirements of the<br>Exchange Act applicable to the Company and, except as disclosed in the SEC Reports, provide<br>reasonable assurance regarding the reliability of financial reporting and the preparation of financial<br>statements for external purposes in accordance with GAAP, including policies and procedures<br>sufficient to provide reasonable assurance (i) that the Company maintains records that in<br>reasonable detail accurately and fairly reflect the Company’s transactions and dispositions of<br>assets, (ii) that transactions are recorded as necessary to permit preparation of financial statements<br>in accordance with GAAP, (iii) that receipts and expenditures are made only in accordance with<br>authorizations of management and the Board and (iv) regarding prevention or timely detection of<br>the unauthorized acquisition, use or disposition of the Company’s assets that could have a material<br>effect on the Company’s financial statements. Except as disclosed in the SEC Reports, the<br>Company has not identified any material weaknesses in the design or operation of the Company’s<br>internal control over financial reporting. The Company’s “disclosure controls and procedures” (as<br>defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) are designed to provide reasonable<br>assurance that all information (both financial and non-financial) required to be disclosed by the<br>Company in the reports that it files or submits under the Exchange Act is recorded, processed,<br>summarized and reported within the time periods specified in the rules and forms of the SEC, and<br>that all such information is accumulated and communicated to the Company’s management as<br>appropriate to allow timely decisions regarding required disclosure.<br>3.23 Price Stabilization of Common Stock. The Company has not taken, nor will<br>it take, directly or indirectly, any action designed to stabilize or manipulate the price of the<br>Common Stock to facilitate the sale or resale of the Shares or the Warrant Shares.<br>3.24 Investment Company Act. The Company is not, and immediately after<br>receipt of payment for the Securities will not be, an “investment company” within the meaning of<br>the U.S. Investment Company Act of 1940, as amended. The Company shall conduct its business<br>in a manner so that it will not become an “investment company” subject to registration under the<br>Investment Company Act of 1940, as amended.<br>3.25 General Solicitation; No Integration . Neither the Company nor any other<br>person or entity authorized by the Company to act on its behalf has engaged in a general solicitation<br>or general advertising (within the meaning of Regulation D of the Securities Act) of investors with<br>respect to offers or sales of Securities or any True-Up Warrants or True-Up Shares pursuant to this<br>Agreement. The Company has not, directly or indirectly, sold, offered for sale, solicited offers to<br>buy or otherwise negotiated in respect of, any security (as defined in the Securities Act) which, to<br>its knowledge, is or will be integrated with the offer and sale of the Securities pursuant to this<br>Agreement for purposes of the Securities Act. Assuming the accuracy of the representations and<br>warranties of the Investors set forth in Section 4, neither the Company nor any of its Affiliates, its<br>subsidiaries nor any Person acting on their behalf has, directly or indirectly, made any offers or<br>sales of any Company security or solicited any offers to buy any Company security, under
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20<br>circumstances that would adversely affect reliance by the Company on Section 4(a)(2) for the<br>exemption from registration for the transactions contemplated hereby.<br>3.26 Brokers and Finders. The Company has not retained, utilized or been<br>represented by any broker or finder in connection with the transactions contemplated by this<br>Agreement.<br>3.27 Reliance by the Investors. The Company has a reasonable basis for making<br>each of the representations set forth in this Section 3. The Company acknowledges that each of<br>the Investors will rely upon the truth and accuracy of, and the Company’s compliance with, the<br>representations, warranties, agreements, acknowledgements and understandings of the Company<br>set forth herein.<br>3.28 No Additional Agreements. There are no agreements or understandings<br>between the Company and any Investor with respect to the transactions contemplated by the<br>Transaction Agreements other than (i) as specified in the Transaction Agreements and (ii) any side<br>letter agreements with any of the Investors, which side letters the Company has shared with all<br>Investors.<br>3.29 Anti-Bribery and Anti-Money Laundering Laws. Each of the Company, its<br>subsidiaries and, to the knowledge of the Company, any of their respective officers, directors,<br>supervisors, managers, agents, or employees are and have at all times been in compliance with and<br>its participation in the offering will not violate: (A) anti-bribery laws, including but not limited to,<br>any applicable law, rule, or regulation of any locality, including but not limited to any law, rule,<br>or regulation promulgated to implement the OECD Convention on Combating Bribery of Foreign<br>Public Officials in International Business Transactions, signed December 17, 1997, including the<br>U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act 2010, or any other<br>law, rule or regulation of similar purposes and scope; (B) anti-money laundering laws, including,<br>but not limited to, applicable federal, state, international, foreign or other laws, regulations or<br>government guidance regarding anti-money laundering, including, without limitation, Title 18 US.<br>Code sections 1956 and 1957, the Patriot Act, the Bank Secrecy Act, and international anti-money<br>laundering principles or procedures by an intergovernmental group or organization, such as the<br>Financial Action Task Force on Money Laundering, of which the United States is a member and<br>with which designation the United States representative to the group or organization continues to<br>concur, all as amended, and any executive order, directive, or regulation pursuant to the authority<br>of any of the foregoing, or any orders or licenses issued thereunder; or (C), any laws with respect<br>to import and export control and economic sanctions, including the U.S. Export Administration<br>Regulations, the U.S. International Traffic in Arms Regulations, and economic sanctions<br>regulations and executive orders administered by the U.S. Department of the Treasury Office of<br>Foreign Asset Control.<br>3.30 Cybersecurity. The Company and its subsidiaries’ information technology<br>assets and equipment, computers, systems, networks, hardware, software, websites, applications,<br>and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all<br>material respects as required in connection with the operation of the business of the Company and<br>its subsidiaries as currently conducted, and are free and clear of all material Trojan horses, time<br>bombs, malware and other malicious code. The Company and its subsidiaries have implemented
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21<br>and maintained commercially reasonable physical, technical and administrative controls designed<br>to maintain and protect the confidentiality, integrity, availability, privacy and security of all<br>sensitive, confidential or regulated data (“Confidential Data”) used or maintained in connection<br>with their businesses and Personal Data (defined below), and the integrity, availability continuous<br>operation, redundancy and security of all IT Systems. “Personal Data” means the following data<br>used in connection with the Company’s and its subsidiaries’ businesses and in their possession or<br>control: (i) a natural person’s name, street address, telephone number, e-mail address, photograph,<br>social security number or other tax identification number, driver’s license number, passport<br>number, credit card number or bank information; (ii) information that identifies or may reasonably<br>be used to identify an individual; (iii) any information that would qualify as “protected health<br>information” under the Health Insurance Portability and Accountability Act of 1996, as amended<br>by the Health Information Technology for Economic and Clinical Health Act (collectively,<br>“HIPAA”); and (iv) any information that would qualify as “personal data,” “personal information”<br>(or similar term) under the Privacy Laws. To the Company’s knowledge, there have been no<br>breaches, outages or unauthorized uses of or accesses to the Company’s IT Systems, Confidential<br>Data, or Personal Data that would require notification under Privacy Laws (as defined below).<br>3.31 Compliance with Data Privacy Laws. The Company and its subsidiaries are,<br>and at all prior times were, in material compliance with all applicable state, federal and foreign<br>data privacy and security laws and regulations regarding the collection, use, storage, retention,<br>disclosure, transfer, disposal, or any other processing (collectively “Process” or “Processing”) of<br>Personal Data, including without limitation HIPAA, the EU General Data Protection Regulation<br>(“GDPR”) (Regulation (EU) No. 2016/679), all other local, state, federal, national, supranational<br>and foreign laws relating to the regulation of the Company or its subsidiaries, and the regulations<br>promulgated pursuant to such statutes and any state or non-U.S. counterpart thereof (collectively,<br>the “Privacy Laws”). To ensure material compliance with the Privacy Laws, the Company and its<br>subsidiaries have in place, comply with, and take all appropriate steps necessary to ensure<br>compliance in all material respects with their policies and procedures relating to data privacy and<br>security, and the Processing of Personal Data and Confidential Data (the “Privacy Statements”).<br>The Company and its subsidiaries have, except as would not reasonably be expected, individually<br>or in the aggregate, to result in a Material Adverse Effect, at all times since inception provided<br>accurate notice of their Privacy Statements then in effect to its customers, employees, third party<br>vendors and representatives. None of such disclosures made or contained in any Privacy<br>Statements have been materially inaccurate, misleading, incomplete, or in material violation of<br>any Privacy Laws.<br>3.32 Transactions with Affiliates and Employees. No relationship, transaction or<br>arrangement, direct or indirect, exists between or among the Company or any of its subsidiaries,<br>on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company,<br>on the other hand, that is required to be described in the SEC Reports that is not so described.<br>3.33 Solvency. Based on the consolidated financial condition of the Company<br>as of the First Closing Date, after giving effect to the receipt by the Company of the proceeds from<br>the sale of all Securities hereunder and the Daewoong Conversion, (i) the fair saleable value of the<br>Company’s assets exceeds the amount that will be required to be paid on or in respect of the<br>Company’s existing debts and other liabilities (including known contingent liabilities) as they<br>mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its
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22<br>business as now conducted and as proposed to be conducted, taking into account the capital<br>requirements of the business conducted by the Company, its consolidated and projected capital<br>requirements, and the capital availability thereof, and (iii) the current cash flow of the Company,<br>together with the proceeds the Company would receive were it to liquidate all of its assets (after<br>taking into account all anticipated uses of such cash), would be sufficient to pay all amounts on or<br>in respect of its liabilities as such amounts become due. The Company does not intend to incur<br>debts beyond its ability to pay such debts as they mature (taking into account the timing and<br>amounts of cash to be payable on or in respect of such debts). Assuming receipt by the Company<br>of the proceeds from the sale of all Securities hereunder and the Daewoong Conversion, the<br>Company has no knowledge of any facts or circumstances that would reasonably be expected to<br>cause it to file for reorganization or liquidation under the bankruptcy or reorganization laws of any<br>jurisdiction within one year from the Second Closing Date.<br>3.34 Subsidiaries. All of the direct and indirect subsidiaries of the Company are<br>set forth in the SEC Reports. Except as set forth in the SEC Reports, the Company owns, directly<br>or indirectly, all of the capital stock or other equity interests of each subsidiary free and clear of<br>any liens, and all of the issued and outstanding shares of capital stock of each subsidiary are validly<br>issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for<br>or purchase securities.<br>3.35 Application of Takeover Protections. The Company and the Board of<br>Directors (or a committee of the Board of Directors) have taken all necessary action, if any, in<br>order to render inapplicable any control share acquisition, business combination, poison pill<br>(including any distribution under a rights agreement) or other similar anti-takeover provision under<br>the Company’s Amended and Restated Certificate of Incorporation or the laws of its state of<br>incorporation that is or could become applicable to the Investors as a result of the Investors and<br>the Company fulfilling their obligations or exercising their rights under the Transaction<br>Agreements, including without limitation as a result of the Company’s issuance of the Securities<br>and the Investors’ ownership of the Securities.<br>3.36 Disclosure. All of the disclosure furnished by or on behalf of the Company<br>to the Investors regarding the Company and its subsidiaries, their respective businesses and the<br>transactions contemplated hereby, including any disclosure schedules to this Agreement, is true<br>and correct and does not contain any untrue statement of a material fact or omit to state any material<br>fact necessary in order to make the statements made therein, in the light of the circumstances under<br>which they were made, not misleading. The press releases disseminated by the Company during<br>the twelve months preceding the date of this Agreement, taken as a whole, do not contain any<br>untrue statement of a material fact or omit to state a material fact required to be stated therein or<br>necessary in order to make the statements therein, in the light of the circumstances under which<br>they were made and when made, not misleading. The Company acknowledges and agrees that no<br>Investor makes or has made any representations or warranties with respect to the transactions<br>contemplated hereby other than those specifically set forth in Section 4 hereof<br>4. Representations and Warranties of Each Investor. Each Investor, severally for itself<br>and not jointly with any other Investor, represents and warrants to the Company that the statements
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23<br>contained in this Section 4 are true and correct as of the date of this Agreement and each of the<br>First Closing Date and the Second Closing Date:<br>4.1 Organization. Any Investor that is not an individual is duly organized,<br>validly existing and in good standing under the laws of the jurisdiction of its organization and has<br>the requisite power and authority to own, lease and operate its properties and to carry on its<br>business as now conducted.<br>4.2 Authorization. The Investor has all requisite corporate or similar power and<br>authority to enter into this Agreement and the other Transaction Agreements to which it will be a<br>party and to carry out and perform its obligations hereunder and thereunder. All corporate,<br>member or partnership action on the part of such Investor or its stockholders, members or partners<br>necessary for the authorization, execution, delivery and performance of this Agreement and the<br>other Transaction Agreements to which it will be a party and the consummation of the other<br>transactions contemplated in this Agreement has been taken. The execution, delivery and<br>performance by such Investor of the Transaction Agreements to which such Investor is a party has<br>been duly authorized and each has been duly executed. Assuming this Agreement constitutes the<br>legal and binding agreement of the Company, this Agreement constitutes a legal, valid and binding<br>obligation of such Investor, enforceable against such Investor in accordance with its respective<br>terms, except as such enforceability may be limited or otherwise affected by bankruptcy,<br>insolvency, fraudulent conveyance, reorganization, moratorium and/or similar laws relating to or<br>affecting the rights of creditors generally or by general equity principles (regardless of whether<br>such enforceability is considered in a proceeding in equity or at law).<br>4.3 No Conflict. The execution, delivery and performance of the Transaction<br>Agreements by the Investor, the purchase of the Securities in accordance with their terms and the<br>consummation by the Investor of the other transactions contemplated hereby will not conflict with<br>or result in any violation of, breach or default by such Investor (with or without notice or lapse of<br>time, or both) under, conflict with, or give rise to a right of termination, cancellation or acceleration<br>of any obligation, a change of control right or to a loss of a material benefit under (i) any provision<br>of the organizational documents of the Investor, including, without limitation, its incorporation or<br>formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be<br>applicable or (ii) any agreement or instrument, undertaking, credit facility, franchise, license,<br>judgment, order, ruling, statute, law, ordinance, rule or regulations, applicable to such Investor or<br>its respective properties or assets, except, in the case of clause (ii), as would not, individually or in<br>the aggregate, be reasonably expected to materially delay or hinder the ability of the Investor to<br>perform its obligations under the Transaction Agreements.<br>4.4 Residency. The Investor’s residence (if an individual) or offices in which<br>its investment decision with respect to the Securities was made (if an entity) are located at the<br>address immediately below the Investor’s name on the pertinent signature page of this Agreement,<br>except as otherwise communicated by the Investor to the Company.<br>4.5 Brokers and Finders. The Investor has not retained, utilized or been<br>represented by any broker or finder in connection with the transactions contemplated by this<br>Agreement whose fees the Company would be required to pay.
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24<br>4.6 Investment Representations and Warranties. The Investor hereby represents<br>and warrants that, it (i) as of the date of this Agreement is, if an entity, a “qualified institutional<br>buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor”<br>as that term is defined in Rule 501(a) under Regulation D promulgated pursuant to the Securities<br>Act; or (ii) if an individual, is an “accredited investor” as that term is defined in Rule 501(a) of<br>Regulation D of the Securities Act and has such knowledge and experience in financial and<br>business matters as to be able to protect its own interests in connection with an investment in the<br>Securities, or in any True-Up Warrants or True-Up Shares. The Investor further represents and<br>warrants that (x) it is capable of evaluating the merits and risk of such investment, and (y) that it<br>has not been organized for the purpose of acquiring the Securities, any True-Up Warrants or any<br>True-Up Shares. The Investor understands and agrees that the offering and sale of none of the<br>Securities, True-Up Warrants or True-Up Shares has been registered under the Securities Act or<br>any applicable state securities laws and is being made in reliance upon federal and state exemptions<br>for transactions not involving a public offering which depend upon, among other things, the bona<br>fide nature of the investment intent and the accuracy of the Investor’s representations as expressed<br>herein.<br>4.7 Intent. The Investor is purchasing the Securities solely for the Investor’s<br>own account and not for the account of others, and not with a view to the resale or distribution of<br>any part thereof in violation of the Securities Act, and the Investor has no present intention of<br>selling, granting any participation in, or otherwise distributing the same in violation of the<br>Securities Act without prejudice, however, to the Investor’s right at all times to sell or otherwise<br>dispose of all or any part of such Securities in compliance with applicable federal and state<br>securities laws. Notwithstanding the foregoing, if the Investor is purchasing the Securities as a<br>fiduciary or agent for one or more investor accounts, the Investor has full investment discretion<br>with respect to each such account, and the full power and authority to make the acknowledgements,<br>representations and agreements herein on behalf of each owner of each such account. The Investor<br>has no present arrangement to sell the Securities to or through any person or entity. The Investor<br>understands that the Securities and any True-Up Warrants or True-Up Shares must be held<br>indefinitely unless such Securities, True-Up Warrants or True-Up Shares are resold pursuant to a<br>registration statement under the Securities Act or an exemption from registration is available.<br>Nothing contained herein shall be deemed a representation or warranty by the Investor to hold the<br>Securities, True-Up Warrants or True-Up Shares for any period of time.<br>4.8 Investment Experience; Ability to Protect Its Own Interests and Bear<br>Economic Risks. The Investor acknowledges that it can bear the economic risk and complete loss<br>of its investment in the Securities, any True-Up Warrants and any True-Up Shares and has<br>knowledge and experience in finance, securities, taxation, investments and other business matters<br>as to be capable of evaluating the merits and risks of investments of the kind described in this<br>Agreement and contemplated hereby, and the Investor has had an opportunity to seek, and has<br>sought, such accounting, legal, business and tax advice as the Investor has considered necessary<br>to make an informed investment decision. The Investor acknowledges that the Investor (i) is a<br>sophisticated investor, experienced in investing in private placements of equity securities and<br>capable of evaluating investment risks independently, both in general and with regard to all<br>transactions and investment strategies involving a security or securities and (ii) has exercised<br>independent judgment in evaluating its participation in the purchase of the Securities, any True-Up Warrants and any True-Up Shares. The Investor acknowledges that the Investor is aware that
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25<br>there are substantial risks incident to the purchase and ownership of the Securities, any True-Up<br>Warrants and any True-Up Shares, including those set forth in the Company’s filings with the<br>SEC. Alone, or together with any professional advisor(s), the Investor has adequately analyzed<br>and fully considered the risks of an investment in the Securities, any True-Up Warrants and any<br>True-Up Shares, and determined that the Securities, any True-Up Warrants and any True-Up<br>Shares are a suitable investment for the Investor. The Investor is, at this time and in the foreseeable<br>future, able to afford the loss of the Investor’s entire investment in the Securities, any True-Up<br>Warrants and any True-Up Shares and the Investor acknowledges specifically that a possibility of<br>total loss exists.<br>4.9 Independent Investment Decision. The Investor understands that nothing in<br>the Transaction Agreements or any other materials presented by or on behalf of the Company to<br>the Investor in connection with the purchase of the Securities, any True-Up Warrants and any<br>True-Up Shares constitutes legal, tax or investment advice. The Investor has consulted such legal,<br>tax and investment advisors as it, in such Investor’s sole discretion, has deemed necessary or<br>appropriate in connection with its purchase of the Securities.<br>4.10 Securities Not Registered; Legends. The Investor acknowledges and agrees<br>that the Securities, any True-Up Warrants and any True-Up Shares are being offered in a<br>transaction not involving any public offering within the meaning of the Securities Act, and the<br>Investor understands that no Securities, True-Up Warrants or True-Up Shares have been registered<br>under the Securities Act, by reason of their issuance by the Company in a transaction exempt from<br>the registration requirements of the Securities Act, and that the Securities any True-Up Warrants<br>and any True-Up Shares must continue to be held and may not be offered, resold, transferred,<br>pledged or otherwise disposed of by the Investor unless a subsequent disposition thereof is<br>registered under the Securities Act or is exempt from such registration and in each case in<br>accordance with any applicable securities laws of any state of the United States. The Investor<br>understands that the exemptions from registration afforded by Rule 144 (the provisions of which<br>are known to it) promulgated under the Securities Act depend on the satisfaction of various<br>conditions including, but not limited to, the time and manner of sale, the holding period and on<br>requirements relating to the Company which are outside of the Investor’s control and which the<br>Company may not be able to satisfy, and that, if applicable, Rule 144 may afford the basis for sales<br>only in limited amounts. The Investor acknowledges and agrees that it has been advised to consult<br>legal counsel prior to making any offer, resale, transfer, pledge or disposition of any of the<br>Securities, any True-Up Warrants and any True-Up Shares. The Investor acknowledges that no<br>federal or state agency has passed upon or endorsed the merits of the offering of the Securities,<br>any True-Up Warrants and any True-Up Shares or made any findings or determination as to the<br>fairness of this investment.<br>The Investor understands that any certificates or book entry notations evidencing the<br>Securities, any True-Up Warrants and any True-Up Shares may bear one or more legends in<br>substantially the following form and substance:<br>“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED<br>UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES<br>ACT”), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.<br>THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT
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26<br>BE SOLD, TRANSFERRED OR ASSIGNED UNLESS (I) SUCH SECURITIES HAVE<br>BEEN REGISTERED FOR SALE PURSUANT TO THE SECURITIES ACT, (II) SUCH<br>SECURITIES MAY BE SOLD PURSUANT TO RULE 144, (III) THE COMPANY HAS<br>RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT<br>THAT SUCH TRANSFER MAY LAWFULLY BE MADE WITHOUT REGISTRATION<br>UNDER THE SECURITIES ACT, OR (IV) THE SECURITIES ARE TRANSFERRED<br>WITHOUT CONSIDERATION TO AN AFFILIATE OF SUCH HOLDER OR A<br>CUSTODIAL NOMINEE (WHICH FOR THE AVOIDANCE OF DOUBT SHALL<br>REQUIRE NEITHER CONSENT NOR THE DELIVERY OF AN OPINION).”<br>In addition, the Securities, any True-Up Warrants and any True-Up Shares may contain a<br>legend regarding affiliate status of the Investor, if applicable.<br>4.11 No General Solicitation. The Investor acknowledges and agrees that the<br>Investor is purchasing the Securities directly from the Company. Investor became aware of this<br>offering of the Securities solely by means of direct contact directly from the Company as a result<br>of a pre-existing, substantive relationship with the Company, and/or its advisors (including,<br>without limitation, attorneys, accountants, bankers, consultants and financial advisors), agents,<br>control persons, representatives, Affiliates, directors, officers, managers, members, and/or<br>employees, and/or the representatives of such persons. The Securities were offered to Investor<br>solely by direct contact between Investor and the Company and/or their respective representatives.<br>Investor did not become aware of this offering of the Securities, nor were the Securities offered to<br>Investor, by any other means, and none of the Company and/or their respective representatives<br>acted as investment advisor, broker or dealer to Investor. The Investor is not purchasing the<br>Securities as a result of any general or public solicitation or general advertising, or publicly<br>disseminated advertisement, article, notice or other communication regarding the Securities<br>published in any newspaper, magazine or similar media or broadcast over television, radio or the<br>internet or presented at any seminar or any other general solicitation or general advertisement,<br>including any of the methods described in Section 502(c) of Regulation D under the Securities<br>Act.<br>4.12 Access to Information. In making its decision to purchase the Securities,<br>such Investor has relied solely upon (i) independent investigation made by such Investor, (ii) the<br>SEC Reports and (iii) the representations, warranties and covenants set forth herein. Such Investor<br>acknowledges and agrees that such Investor and the Investor’s professional advisor(s), if any, have<br>had the opportunity to ask such questions, receive such answers and obtain such information from<br>the Company regarding the Company, its business and the terms and conditions of the offering of<br>the Securities as the Investor and the Investor’s professional advisor(s), if any, have deemed<br>necessary to make an investment decision with respect to the Securities (including any financial<br>results of the Company for any completed but not yet publicly reported period) and that the<br>Investor has independently made its own analysis and decision to invest in the Company. Neither<br>such inquiries nor any other due diligence investigation conducted by the Investor shall modify,<br>limit or otherwise affect the Investor’s right to rely on the Company’s representations and<br>warranties contained in this Agreement.<br>4.13 Certain Trading Activities. Other than consummating the transaction<br>contemplated hereby, the Investor has not, nor has any Person acting on behalf of or pursuant to
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27<br>any understanding with the Investor, directly or indirectly executed any purchases or sales,<br>including Short Sales, of the securities of the Company during the period commencing as of the<br>time that the Investor was first contacted by the Company or any other Person regarding the<br>transaction contemplated hereby and ending immediately prior to the date of this Agreement.<br>Notwithstanding the foregoing, in the case of an Investor that is a multi-managed investment<br>vehicle whereby separate portfolio managers manage separate portions of such Investor’s assets<br>and the portfolio managers have no direct knowledge of the investment decisions made by the<br>portfolio managers managing other portions of such Investor’s assets, the representation set forth<br>above shall only apply with respect to the portion of the assets managed by the portfolio manager<br>that made the investment decision to purchase the Securities covered by this Agreement.<br>Furthermore, in the case of an Investor whose investment advisor utilized an information barrier<br>with respect to the information regarding the transactions contemplated hereunder after first being<br>contacted by the Company or its representatives, the representation set forth above shall only apply<br>after the point in time when the portfolio manager who manages such Investor’s assets was<br>informed of the information regarding the transactions contemplated hereunder and, with respect<br>to the Investor’s investment advisor, the representation set forth above shall only apply with<br>respect to any purchases or sales, including Short Sales, of the securities of the Company on behalf<br>of other funds or investment vehicles for which the Investor’s investment advisor is also an<br>investment advisor or sub-advisor after the point in time when the portfolio manager who manages<br>the assets of such other funds or investment vehicles for which the Investor’s investment advisor<br>is also an investment advisor or sub-advisor was informed of the information regarding the<br>transactions contemplated hereunder. Other than to other Persons party to this Agreement and to<br>its advisors and agents who had a need to know such information, the Investor has maintained the<br>confidentiality of all disclosures made to it in connection with this transaction (including the<br>existence and terms of this transaction). Notwithstanding the foregoing, for avoidance of doubt,<br>nothing contained herein shall constitute a representation or warranty, or preclude any actions,<br>with respect to the identification of the availability of, or securing of, available shares to borrow<br>in order to effect Short Sales or similar transactions in the future.<br>5. Covenants.<br>5.1 Further Assurances. Each party agrees to cooperate with each other and their<br>respective officers, employees, attorneys, accountants and other agents, and, generally, do such<br>other reasonable acts and things in good faith as may be necessary to effectuate the intents and<br>purposes of this Agreement, subject to the terms and conditions of this Agreement and compliance<br>with applicable law, including taking reasonable action to facilitate the filing of any document or<br>the taking of reasonable action to assist the other parties hereto in complying with the terms of this<br>Agreement. The Investor acknowledges that the Company will rely on the acknowledgments,<br>understandings, agreements, representations and warranties contained in this Agreement. Prior to<br>each of the First Closing and Second Closing, the Investor agrees to promptly notify the Company<br>if any of the acknowledgments, understandings, agreements, representations and warranties set<br>forth in Section 4 of this Agreement are no longer accurate.<br>5.2 Listing. The Company shall use reasonable best efforts to maintain the<br>listing and trading of its Common Stock on the NYSE American and, in accordance therewith,<br>will use reasonable best efforts to, as applicable, regain compliance or comply in all material
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28<br>respects with the Company’s reporting, filing and other obligations under the rules and regulations<br>of NYSE American.<br>5.3 Disclosure of Transactions.<br>(a) The Company shall, by 9:00 a.m., New York City time, on the<br>second (2nd) Business Day immediately following the date of this Agreement, issue a press release<br>and/or file with the SEC a Current Report on Form 8-K (including, if applicable, all exhibits<br>thereto, the “Disclosure Document”) disclosing all material terms of the transactions<br>contemplated hereby and by the other Transaction Agreements. In addition, unless it has already<br>done so by filing the Disclosure Document, on or before the fourth (4th) Business Day following<br>the date of this Agreement, the Company shall file with the SEC a Current Report on Form 8-K<br>disclosing all material terms of the transactions contemplated by this Agreement and attaching this<br>Agreement and the other Transaction Agreements as exhibits to such Current Report on Form 8-<br>K. Prior to the issuance or filing of any such press release or Form 8-K, the Company shall, to the<br>extent reasonably practicable, provide the Investors (through their designated counsel) with a draft<br>thereof for review and comment, and shall consider in good faith any Investor comments.<br>Notwithstanding anything in this Agreement to the contrary, the Company shall not publicly<br>disclose the name of any Investor or any of its Affiliates or advisors, or include the name of any<br>Investor or any of its Affiliates or advisors in any press release or filing with the SEC (other than<br>any registration statement contemplated by the Registration Rights Agreement) or any regulatory<br>agency, without the prior written consent of the Investor, except (i) as required by the federal<br>securities law in connection with (A) any registration statement contemplated by the Registration<br>Rights Agreement and (B) the filing of final Transaction Agreements with the SEC or pursuant to<br>other routine proceedings of regulatory authorities, or (ii) to the extent such disclosure is required<br>by law, at the request of the staff of the SEC or regulatory agency or under the regulations of the<br>NYSE American.<br>(b) [Reserved]<br>5.4 Integration. The Company shall not, and shall use its reasonable best efforts<br>to ensure that no Affiliate of the Company shall, sell, offer for sale or solicit offers to buy or<br>otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that<br>will be integrated with the offer or sale of the Securities in a manner that would require the<br>registration under the Securities Act of the sale of the Securities to the Investors.<br>5.5 Removal of Legends.<br>(a) In connection with any sale, assignment, transfer or other<br>disposition of the Shares or Warrant Shares by an Investor pursuant to Rule 144 or pursuant to any<br>other exemption under the Securities Act such that the purchaser acquires freely tradable shares<br>and upon compliance by the Investor with the requirements of this Agreement, if requested by the<br>Investor by notice to the Company, the Company shall, within two (2) Business Days following<br>receipt of such notice, request the Transfer Agent to remove any restrictive legends related to the<br>book entry account holding such shares and make a new, unlegended entry for such shares. No<br>legal opinion of the Investor shall be required unless required by the Transfer Agent, and any such<br>opinion shall be provided by the Company’s counsel at the Company’s expense. The Company
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29<br>shall be responsible for the fees of its Transfer Agent and its legal counsel associated with such<br>legend removal.<br>(b) Subject to receipt from the Investor by the Company and the<br>Transfer Agent of customary representations and other documentation reasonably acceptable to<br>the Company and the Transfer Agent in connection therewith, upon the earliest of such time as the<br>Shares or Warrant Shares (i) have been sold under the Securities Act pursuant to an effective<br>registration statement; (ii) have been sold pursuant to Rule 144, or (iii) are eligible for resale under<br>Rule 144(b)(1)), the Company shall, in accordance with the provisions of this Section 5.5(b) and<br>as soon as reasonably practicable following any request therefor from an Investor accompanied by<br>such customary and reasonably acceptable documentation referred to above, (A) deliver to the<br>Transfer Agent irrevocable instructions that the Transfer Agent shall make a new, unlegended entry<br>for such book entry shares, and (B) cause its counsel to deliver to the Transfer Agent one or more<br>opinions to the effect that the removal of such legends in such circumstances may be effected under<br>the Securities Act if required by the Transfer Agent to effect the removal of the legend in<br>accordance with the provisions of this Agreement.<br>(c) If the Company fails to deliver unlegended Shares or Warrant Shares<br>by the applicable deadline under this Section 5.5, the Company shall pay to the Investor, as partial<br>liquidated damages and not as a penalty, $10 per Trading Day (increasing to $20 per Trading Day<br>three (3) Trading Days after such deadline) for each $1,000 of Shares or Warrant Shares (based on<br>the VWAP of the Common Stock on the date such Shares or Warrant Shares were submitted for<br>legend removal) until such shares are delivered without legends. If, after such deadline, the<br>Investor purchases shares of Common Stock to settle a sale that it reasonably anticipated would be<br>satisfied by legend-free shares, the Company shall reimburse the Investor for the excess of the<br>Investor’s total purchase price (including brokerage commissions and other out-of-pocket<br>expenses) over the product of (i) the number of shares the Company was required to deliver<br>multiplied by (ii) the lowest closing sale price of the Common Stock during the period from the<br>submission date until such delivery and payment.<br>5.6 Withholding Taxes. Each Investor agrees to furnish the Company with any<br>information, representations and forms as shall reasonably be requested by the Company from time<br>to time to assist the Company in complying with any applicable tax law (including any withholding<br>obligations).<br>5.7 Fees and Commissions. The Company shall be solely responsible for the<br>payment of any placement agent’s fees, financial advisory fees, or broker’s commissions (other<br>than for Persons engaged by an Investor) relating to or arising out of the transactions contemplated<br>hereby.<br>5.8 No Conflicting Agreements. The Company will not take any action, enter<br>into any agreement or make any commitment that would conflict or interfere in any material<br>respect with the Company’s obligations to the Investors under the Transaction Agreements.<br>5.9 Indemnification.
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30<br>(a) The Company agrees to indemnify and hold harmless each Investor<br>and its Affiliates, and their respective directors, officers, trustees, members, managers, employees,<br>investment advisors and agents (collectively, the “Indemnified Persons”), from and against any<br>and all losses, claims, damages, liabilities and expenses (including without limitation reasonable<br>and documented attorney fees and disbursements and other documented out-of-pocket expenses<br>reasonably incurred in connection with investigating, preparing or defending any action, claim or<br>proceeding, pending or threatened and the costs of enforcement thereof) to which such Person may<br>become subject as a result of any breach of representation, warranty, covenant or agreement made<br>by or to be performed on the part of the Company under the Transaction Agreements, and will<br>reimburse any such Person for all such amounts as they are incurred by such Person solely to the<br>extent such amounts have been finally judicially determined not to have resulted from such<br>Person’s fraud or willful misconduct.<br>(b) Any person entitled to indemnification hereunder shall (i) give<br>prompt written notice to the indemnifying party of any claim with respect to which it seeks<br>indemnification and (ii) permit such indemnifying party to assume the defense of such claim with<br>counsel reasonably satisfactory to the indemnified party; provided that any person entitled to<br>indemnification hereunder shall have the right to employ separate counsel and to participate in the<br>defense of such claim, but the fees and expenses of such counsel shall be at the expense of such<br>person unless (a) the indemnifying party has agreed in writing to pay such fees or expenses, (b)<br>the indemnifying party shall have failed to assume the defense of such claim and employ counsel<br>reasonably satisfactory to such person or (c) in the reasonable judgment of any such person, based<br>upon written advice of its counsel, a conflict of interest exists between such person and the<br>indemnifying party with respect to such claims (in which case, if the person notifies the<br>indemnifying party in writing that such person elects to employ separate counsel at the expense of<br>the indemnifying party, the indemnifying party shall not have the right to assume the defense of<br>such claim on behalf of such person); and provided, further, that the failure of any indemnified<br>party to give written notice as provided herein shall not relieve the indemnifying party of its<br>obligations hereunder, except to the extent that such failure to give notice shall materially adversely<br>affect the indemnifying party in the defense of any such claim or litigation. It is understood that<br>the indemnifying party shall not, in connection with any proceeding in the same jurisdiction, be<br>liable for fees or expenses of more than one separate firm of attorneys at any time for all such<br>indemnified parties. No indemnifying party will, except with the consent of the indemnified party,<br>which consent shall not be unreasonably withheld, conditioned or delayed, consent to entry of any<br>judgment or enter into any settlement unless such judgment or settlement (i) imposes no liability<br>or obligation on, (ii) includes as an unconditional term thereof the giving of a complete, explicit<br>and unconditional release from the party bringing such indemnified claims of all liability of the<br>indemnified party in respect of such claim or litigation in favor of, and (iii) does not include any<br>admission of fault, culpability, wrongdoing, or wrongdoing or malfeasance by or on behalf of, the<br>indemnified party. No indemnified party will, except with the consent of the indemnifying party,<br>which consent shall not be unreasonably withheld, conditioned or delayed, consent to entry of any<br>judgment or enter into any settlement.<br>5.10 Reservation of Common Stock. As of the date of this Agreement, the<br>Company has reserved and the Company shall continue to reserve and keep available at all times,<br>free of preemptive rights, a number of authorized but unissued shares of Common Stock equal to<br>at least one hundred fifty percent (150%) of the maximum number of shares of Common Stock
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31<br>issuable upon exercise of all Warrants and True-Up Warrants (without regard to any limitations<br>on exercise set for the therein, and without regards to any adjustment set forth therein) for the<br>purpose of enabling the Company to issue the Warrant Shares that are issuable upon the exercise<br>of the Warrants and the True-Up Shares that are issuable upon the exercise of the True-Up<br>Warrants.<br>5.11 Stockholder Approval; Agreement to Vote.<br>(a) The Company shall use its reasonable best efforts to obtain approval<br>by the Company’s stockholders a proposal to approve the issuance of (i) Securities to be sold in<br>the Second Closing, (ii) True-Up Shares issuable upon exercise of the True-Up Warrants, and (iii)<br>the shares of Common Stock and Pre-Funded Warrants issuable in connection with the Daewoong<br>Conversion, in each case in accordance with the rules and regulations of the NYSE American (such<br>proposal, the “Stockholder Approval Proposal”; and the receipt of sufficient votes of the<br>Company’s stockholders required to approve the Stockholder Approval Proposal being referred to<br>herein as the “Requisite Stockholder Approval”) at an annual or special meeting of stockholders<br>(the “Stockholder Meeting”), all in accordance with the DGCL, the Amended and Restated<br>Certificate of Incorporation, the Amended and Restated Bylaws and the rules of the NYSE<br>American, as applicable.<br>(b) The Company shall take all action necessary to duly call, give notice<br>of, convene and hold a meeting of its stockholders (such meeting, the “Stockholders Meeting”)<br>for the purpose of, among any other matters, obtaining the Requisite Stockholder Approval (the<br>date such approval is obtained, the “Stockholder Approval Date”) as promptly as reasonably<br>practicable after the SEC confirms that it has no further comments on the Proxy Statement (as<br>defined below) or the Company otherwise determines in good faith that such Proxy Statement will<br>not be reviewed by the SEC (subject to compliance with the 10-day waiting period set forth in<br>Rule 14a-6 under the Exchange Act). If the Requisite Stockholder Approval is not obtained at the<br>Stockholders Meeting, the Company shall cause an additional meeting (special or general) of the<br>Company’s stockholders to be held every ninety (90) days thereafter for the purpose of obtaining<br>the Requisite Stockholder Approval until the Requisite Stockholder Approval is obtained. Without<br>limiting the generality of the foregoing, the Company will comply with the terms of this Section<br>5.11 with respect to each such meeting of stockholders as if it were the Stockholders Meeting.<br>(c) In connection with the Stockholders Meeting, the Company shall (i)<br>as promptly following the date of this Agreement as the Company shall reasonably determine is<br>necessary in order to hold the Stockholders Meeting on or prior to January 31, 2026 (or in the case<br>of any subsequent meeting of stockholders, the deadline for holding such meeting as provided in<br>Section 5.11(b)), prepare and file with the SEC a proxy statement (any such proxy statement, as it<br>may be amended or supplemented from time to time, the “Proxy Statement”) related to the<br>consideration of the Stockholder Approval Proposal at the Stockholders Meeting, (ii) respond as<br>promptly as reasonably practicable to any comments received from the SEC with respect to the<br>Proxy Statement and provide copies of such comments to each Investor that has so requested in a<br>written request delivered to the Company prior to the filing of the Proxy Statement (each such<br>Investor delivering such request being referred to herein as a “Requesting Investor”) and<br>promptly upon receipt of such request provide copies of proposed responses to each Requesting<br>Investor, allowing for reasonable time prior to responding to the SEC to allow for meaningful
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32<br>comment by such Requesting Investor, (iii) as promptly as reasonably practicable, prepare and file<br>any amendments or supplements necessary to be filed in response to any SEC comments or as<br>otherwise required by law, (iv) mail to its stockholders as promptly as reasonably practicable the<br>Proxy Statement and all other customary proxy or other materials for meetings such as the<br>Stockholders Meeting, (v) to the extent required by applicable law, as promptly as reasonably<br>practicable, prepare, file and distribute to the Company stockholders any supplement or<br>amendment to the Proxy Statement if any event shall occur which requires such action at any time<br>prior to the Stockholders Meeting, and (vi) otherwise use reasonable best efforts to comply with<br>all requirements of law applicable to the Stockholders Meeting. Each of the Investors (severally<br>and not jointly) shall reasonably cooperate with the Company in connection with the preparation<br>of the Proxy Statement and any amendments or supplements thereto, including promptly<br>furnishing the Company upon request with any and all information in respect of such Investor as<br>may be required to be set forth in the Proxy Statement or any amendments or supplements thereto<br>under applicable law. The Company will provide each Requesting Investor a reasonable<br>opportunity to review and comment upon the Proxy Statement, or any amendments or supplements<br>thereto, and shall give reasonable consideration to any such comments proposed, prior to mailing<br>the Proxy Statement to the Company’s stockholders. The Proxy Statement shall include the<br>recommendation of the Board of Directors that stockholders vote in favor of the adoption of the<br>Stockholder Approval Proposal at the Stockholders Meeting, and the Company shall use its<br>reasonable best efforts to obtain the Requisite Stockholder Approval at the Stockholders Meeting,<br>including by retaining and utilizing the efforts of a nationally recognized proxy solicitation firm.<br>(d) The Company hereby represents, warrants and covenants that (i)<br>none of the information to be included or incorporated by reference in the Proxy Statement or any<br>amendment or supplement thereto, or any other document filed with the SEC in connection with<br>the solicitation of the Stockholder Approval at the Stockholders Meeting (all such other<br>documents, the “Other Filings”) shall, in the case of the Proxy Statement, at the date it is first<br>mailed to the Company’s stockholders or at the time of the Stockholders Meeting or at the time of<br>any amendment or supplement thereof, or, in the case of any Other Filing, at the date it is first<br>mailed to the Company’s stockholders or at the date it is first filed with the SEC, contain any untrue<br>statement of a material fact or omit to state any material fact required to be stated therein or<br>necessary in order to make the statements therein, in light of the circumstances under which they<br>are made, not misleading, except that no such representation, warranty or covenant is hereby made<br>by the Company with respect to statements made or incorporated by reference therein based on<br>information supplied by or on behalf of any of the Investors in connection with the preparation of<br>the Proxy Statement or the Other Filings expressly for inclusion or incorporation by reference<br>therein, and (ii) the Proxy Statement and the Other Filings shall comply as to form in all material<br>respects with the requirements of the Exchange Act.<br>(e) Promptly after the Requisite Stockholder Approval is obtained, and<br>in any event within one (1) Business Day thereafter, the Company shall promptly deliver notice of<br>the Stockholder Approval to each of the Investors and file with the SEC a Form 8-K disclosing the<br>same.<br>(f) Each Investor agrees, severally and not jointly, with the Company<br>(it being understood that such agreement is solely between the Company and each Investor, and<br>not among the Investors) that (a) such Holder Investor shall appear at the Stockholders Meeting
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33<br>or otherwise cause all shares of Common Stock beneficially owned by such Investor to be counted<br>as present thereat for purposes of establishing a quorum and (b) such Investor shall vote, by proxy<br>or otherwise, all shares of Common Stock beneficially owned by such Investor (i) in favor of the<br>Stockholder Approval Proposal, any proposal relating to the issuance of the Exchange Shares<br>pursuant to the Daewoong Term Sheet, and any matter that would reasonably be expected to<br>facilitate such approvals, and (ii) against approval of any proposal made in opposition to such<br>matters or that would reasonably be expected to impede, interfere with, delay, postpone, adversely<br>affect or prevent the consummation of the transactions contemplated by this Agreement or the<br>Daewoong Term Sheet.<br>(g) Each Investor agrees, severally and not jointly, with the Company<br>(it being understood that such agreement is solely between the Company and each Investor, and<br>not among the Investor) that, with respect to all securities of the Company held by the Investor,<br>until the Second Closing Date, such Investor will not, without the written consent of the Company,<br>directly or indirectly, transfer, sell, offer, exchange, assign, pledge, exercise or otherwise dispose<br>of or encumber (“Transfer”) any securities of the Company or enter into any contract, option or<br>other agreement with respect to, or consent to, a transfer of, any securities of the Company or such<br>Investor’s voting or economic interest therein. Notwithstanding the foregoing, each Investor may<br>Transfer securities of the Company (A) as a bona fide gift, for estate planning purposes, by will or<br>intestacy, or by operation law; (B) to an affiliate of (including any entity controlling, controlled by<br>or under common control with) the Investor, to an immediate family member of an Investor that is<br>an individual, or as part of a distribution to equity holders or beneficiaries of an Investor that is an<br>entity; (C) to the Company in connection with outstanding contractual obligations or in<br>transactions approved by its Board of Directors; or (D) pursuant to a bona fide third-party tender<br>offer, merger, consolidation or other similar transaction that is approved by the Board of Directors;<br>provided, however, that in the case of clauses (A) or (B), these permitted transferees must enter<br>into a written agreement with the Company agreeing to be bound by the terms of this Section<br>5.11(g).<br>5.12 Participation in Future Financings. From the date hereof until the earlier of<br>(i) the date that no Common Warrants remain outstanding and (ii) eighteen (18) month anniversary<br>of the Second Closing Date, the Company shall afford each Investor the opportunity to participate<br>in any financing not registered under the Securities Act and involving the issuance by the Company<br>of Common Stock or Common Stock Equivalents for cash (a “Subsequent Financing”) on the<br>same terms, conditions, and price provided for in such Subsequent Financing, and in an amount<br>not to exceed such Investor’s pro rata ownership of the Company (determined on a fully diluted<br>basis immediately prior to the closing of such Subsequent Financing). The Company shall provide<br>each Investor with written notice of its intention to effect any Subsequent Financing at least five<br>(5) Business Days prior to the proposed execution of definitive documentation therefor, describing<br>in reasonable detail the proposed terms and anticipated timing, and each Investor may elect to<br>participate by written notice to the Company within three (3) Business Days after receipt of such<br>notice. Failure to respond within such period shall be deemed a waiver of such participation right<br>for that particular financing. This Section 5.12 shall not apply to the Daewoong Conversion. The<br>Company acknowledges that an Investor may, without the prior consent of the Company, assign<br>its rights under this Section 5.12 in whole or in part to any of its Affiliates or to any other<br>investment funds or accounts managed or advised by the investment manager who acts on behalf<br>of such Investor.
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34<br>5.13 Use of Proceeds. The Company shall use the net proceeds from the sale of<br>the Securities hereunder for working capital purposes and other general corporate purposes and<br>shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s Indebtedness<br>(other than payment of trade payables in the ordinary course of the Company’s business and prior<br>practices), (b) for the redemption of any Common Stock or Common Stock Equivalents, (c) for<br>the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC regulations.<br>5.14 Acknowledgment of Dilution. The Company acknowledges that the<br>issuance of the Securities may result in dilution of the outstanding shares of Common Stock, which<br>dilution may be substantial under certain market conditions. The Company further acknowledges<br>that its obligations under the Transaction Agreements, including, without limitation, its obligation<br>to issue the shares underlying the Securities pursuant to the Transaction Agreements, are<br>unconditional and absolute and not subject to any right of set off, counterclaim, delay or reduction,<br>regardless of the effect of any such dilution or any claim the Company may have against any<br>Investor and regardless of the dilutive effect that such issuance may have on the ownership of the<br>other stockholders of the Company.<br>6. Conditions of Closing.<br>6.1 Conditions to the Obligation of the Investors. The several obligations of<br>each Investor to consummate the transactions to be consummated at each Closing, and to purchase<br>and pay for the Securities being purchased by it at a Closing pursuant to this Agreement, are subject<br>to the satisfaction or waiver in writing of the following conditions precedent:<br>(a) Representations and Warranties. The representations and warranties<br>of the Company contained herein shall be true and correct in all material respects, except for those<br>representation and warranties qualified by materiality or Material Adverse Effect, which shall be<br>true and correct in all respects, as of the date of this Agreement and as of such Closing Date, as<br>though made on and as of such date, except to the extent any such representation or warranty<br>expressly speaks as of an earlier date, in which case such representation or warranty shall be true<br>and correct in all material respects as of such earlier date, except for those representations and<br>warranties qualified by materiality or Material Adverse Effect, which shall be true and correct in<br>all respects as of such earlier date.<br>(b) Performance. The Company shall have performed in all material<br>respects the obligations and conditions herein required to be performed or observed by the<br>Company on or prior to such Closing Date.<br>(c) No Injunction. The purchase of and payment for the Securities by<br>each Investor shall not be prohibited or enjoined by any law or governmental or court order or<br>regulation and no such prohibition shall have been threatened in writing.<br>(d) Consents. The Company shall have obtained any and all consents,<br>permits, approvals, registrations and waivers necessary for the consummation of the purchase and<br>sale of the Securities at such Closing, all of which shall be in full force and effect.<br>(e) Transfer Agent. The Company shall have furnished all required<br>materials to the Transfer Agent to reflect the issuance of Shares at such Closing.
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35<br>(f) Adverse Changes. Since the date of this Agreement, no event or<br>series of events shall have occurred that has had or would reasonably be expected to have a<br>Material Adverse Effect.<br>(g) Opinion of Company Counsel. The Company shall have delivered<br>to the Investors the opinion of Latham & Watkins LLP, dated as of such Closing Date, in customary<br>form and substance to be reasonably agreed upon with the Investors and addressing such legal<br>matters as the Investors and the Company reasonably agree.<br>(h) Compliance Certificate. An authorized officer of the Company shall<br>have delivered to the Investors at the Closing Date a certificate certifying that the conditions<br>specified in Sections 6.1(a) (Representations and Warranties), 6.1(b) (Performance), 6.1(c) (No<br>Injunction), 6.1(d) (Consents), 6.1(e) (Transfer Agent), 6.1(f) (Adverse Changes), 6.1(l) (Listing<br>Requirements) and 6.1(l) (No Injunction) of this Agreement have been fulfilled.<br>(i) Secretary’s Certificate. The Secretary of the Company shall have<br>delivered to the Investors at the Closing Date a certificate certifying (i) the Amended and Restated<br>Certificate of Incorporation; (ii) the Amended and Restated Bylaws; and (iii) resolutions of the<br>Company’s Board of Directors (or an authorized committee thereof) approving this Agreement,<br>the other Transaction Agreements, the transactions contemplated by this Agreement and the<br>issuance of the Securities and the Warrant Shares.<br>(j) Good Standing. The Company shall have delivered to the Investors<br>a certificate evidencing the formation and good standing of the Company in the State of Delaware<br>issued by the Secretary of State of the State of Delaware as of a date within thirty (30) days of the<br>First Closing Date.<br>(k) Registration Rights Agreement. At the First Closing Date, the<br>Company shall have executed and delivered the Registration Rights Agreement in the form<br>attached hereto as Exhibit E (the “Registration Rights Agreement”) to the Investors. At the<br>Second Closing Date, the Registration Rights Agreement shall remain in full force and effect.<br>(l) Listing Requirements. No stop order or suspension of trading shall<br>have been imposed by the NYSE American, the SEC or any other governmental or regulatory body<br>with respect to public trading in the Common Stock, nor shall suspension by the SEC, the NYSE<br>American or any other National Exchange have been threatened, as of such Closing Date;<br>provided, however, that the existence of any listing deficiencies of the Company disclosed in the<br>SEC Reports prior to the date of this Agreement shall not constitute a threatened suspension that<br>results in the failure or violation of this Section 6.1(l). The Common Stock shall be listed on a<br>National Exchange and shall not have been suspended, as of such Closing Date, by the SEC or the<br>National Exchange from trading thereon; and the Company shall have filed with the NYSE<br>American a supplemental listing application Shares for the listing of the Shares and the Warrant<br>Shares issued or issuable at such Closing Date and the NYSE American shall have approved such<br>application.<br>(m) No Injunction. No judgment, writ, order, injunction, award or decree<br>of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any
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36<br>order of or by any Governmental Entity, shall have been issued, and no action or proceeding shall<br>have been instituted by any Governmental Entity, enjoining or preventing the consummation of<br>the transactions contemplated hereby or in the other Transaction Agreements.<br>(n) Payment. Except as may be agreed to among the Company and one<br>or more Investors in accordance with Section 2.2, the Company shall have received payment, by<br>wire transfer of immediately available funds, in the full amount of the purchase price for the<br>number of Securities being purchased by each other Investor at such Closing as set forth in Exhibit<br>A.<br>(o) Requisite Stockholder Approval. In the case of the Second Closing<br>Date, the Requisite Stockholder Approval shall have been obtained.<br>(p) Daewoong Conversion. In the case of the Second Closing Date, the<br>Daewoong Conversion shall have occurred or shall occur simultaneously with the Second Closing.<br>6.2 Conditions to the Obligation of the Company. The obligation of the<br>Company to consummate the transactions to be consummated at each Closing, and to issue and<br>sell to each Investor the Securitiesto be purchased by it at such Closing pursuant to this Agreement,<br>is subject to the satisfaction or waiver in writing of the following conditions precedent:<br>(a) Representations and Warranties. The representations and warranties<br>of each Investor in Section 4 hereto shall be true and correct on and as of such Closing Date, with<br>the same force and effect as though made on and as of the Closing Date and consummation of such<br>Closing shall constitute a reaffirmation by the Investor of each of the representations, warranties,<br>covenants and agreements of the Investor contained in this Agreement as of such Closing Date.<br>(b) Performance. Each Investor shall have performed or complied with<br>in all material respects all obligations and conditions herein required to be performed or observed<br>by such Investor on or prior to such Closing Date.<br>(c) Injunction. The purchase of and payment for the Securities by each<br>Investor shall not be prohibited or enjoined by any law or governmental or court order or<br>regulation.<br>(d) Registration Rights Agreement. At the First Closing Date, each<br>Investor shall have executed and delivered the Registration Rights Agreement to the Company in<br>the form attached as Exhibit E.<br>(e) Payment. Except as may be agreed to among the Company and such<br>Investor in accordance with Section 2.2, the Company shall have received payment, by wire<br>transfer of immediately available funds, in the full amount of the purchase price for the number of<br>Securities being purchased by each Investor at such Closing as set forth in Exhibit A.<br>(f) Requisite Stockholder Approval. In the case of the Second Closing<br>Date, the Requisite Stockholder Approval shall have been obtained.
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37<br>7. Termination.<br>7.1 Termination. The obligations of the Company, on the one hand, and the<br>Investors, on the other hand, to effect a Closing shall terminate as follows:<br>(i) Upon the mutual written consent of the Company and the Investors<br>that agreed to purchase a majority of the Securities prior to a Closing;<br>(ii) By the Company if any of the conditions set forth in Section 6.2<br>shall have become incapable of fulfillment, and shall not have been waived by the Company;<br>(iii) By an Investor (with respect to itself only) if any of the conditions<br>set forth in Section 6.1 shall have become incapable of fulfillment, and shall not have been waived<br>by such Investor;<br>(iv) By either the Company or an Investor (with respect to itself only) if<br>the First Closing has not occurred on or prior to the fifth Business Day following the date of this<br>Agreement;<br>(v) By either the Company or an Investor (with respect to itself only),<br>with respect to the Second Closing only, in the event that the Requisite Stockholder Approval is<br>not received pursuant to Section 5.11 on or before August 12, 2026; or<br>provided, however, that, in the case of clauses (ii) through (v) above, the party<br>seeking to terminate its obligation to effect a Closing shall not then be in breach of any of its<br>representations, warranties, covenants or agreements contained in the Transaction Agreements if<br>such breach has resulted in the circumstances giving rise to such party’s seeking to terminate its<br>obligation to effect a Closing.<br>7.2 Notice. In the event of termination by the Company or the Investor of its<br>obligations to effect a Closing pursuant to Section 7.1, written notice thereof shall be given to the<br>other Investors by the Company. Nothing in this Section 7 shall be deemed to release any party<br>from any liability for any breach by such party of the other terms and provisions of the Transaction<br>Agreements or to impair the right of any party to compel specific performance by any other party<br>of its other obligations under the Transaction Agreements.<br>8. Miscellaneous Provisions.<br>8.1 Public Statements or Releases. Except as set forth in Section 5.3, neither<br>the Company nor any Investor shall make any public announcement with respect to the existence<br>or terms of this Agreement or the transactions provided for herein without the prior consent of the<br>other party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing,<br>and subject to compliance with Section 5.3, nothing in this Section 8.1 shall prevent any party<br>from making any public announcement it considers necessary in order to satisfy its obligations<br>under the law, including applicable securities laws, or under the rules of any national securities<br>exchange or securities market, in which case the Company shall allow the Investors reasonable<br>time to comment on such release or announcement in advance of such issuance, and the Company<br>will consider in good faith any Investor comments. The Company shall not include the name of
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38<br>the Investor in any press release or public announcement (which, for the avoidance of doubt, shall<br>not include any filing with the SEC if so required by the applicable rules of the SEC) without the<br>prior written consent of the Investors, except as otherwise required by law or the applicable rules<br>or regulations of any securities exchange or securities market, in which case the Company shall<br>allow the Investors, to the extent reasonably practicable in the circumstances, reasonable time to<br>comment on such release or announcement in advance of such issuance. Notwithstanding anything<br>to the contrary in this Section 8.1, Investor review shall not be required for Company disclosures<br>that are substantially consistent with prior Company disclosures.<br>8.2 Notices. Any notices or other communications required or permitted to be<br>given hereunder shall be in writing and shall be deemed to be given (a) when delivered if<br>personally delivered to the party for whom it is intended, (b) when delivered, if sent by electronic<br>mail during normal business hours of the recipient, and if not sent during normal business hours,<br>then on the recipient’s next Business Day, (c) three (3) days after having been sent by certified or<br>registered mail, return-receipt requested and postage prepaid, or (d) one (1) Business Day after<br>deposit with a nationally recognized overnight courier, freight prepaid, specifying next business<br>day delivery, with written verification of receipt:<br>(a) If to the Company, addressed as follows:<br>AEON Biopharma, Inc.<br>5 Park Plaza, Suite 1750<br>Irvine, CA 92614<br>Attention: CEO; General Counsel<br>Email: rb@aeonbiopharma.com; aw@aeonbiopharma.com<br>with a copy (which shall not constitute notice):<br>Latham & Watkins LLP<br>650 Town Center Drive<br>20th Floor<br>Costa Mesa, California 92626<br>Attention: Drew Capurro<br>Email: drew.capurro@lw.com<br>(b) If to any Investor, at its address or e-mail address set forth on Exhibit<br>A, or such address as subsequently modified by written notice given in accordance with this<br>Section 8.2.<br>Any Person may change the address to which notices and communications to it are to be<br>addressed by notification as provided for herein.<br>8.3 Consent to Electronic Notice. Each Investor consents to the delivery of any<br>stockholder notice pursuant to Section 232 of the DGCL, at the e-mail address set forth below the<br>Investor’s name on the signature page or Exhibit A, as updated from time to time by notice to the<br>Company. To the extent that any notice given by means of electronic mail is returned or<br>undeliverable for any reason, the foregoing consent shall be deemed to have been revoked until a
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39<br>new or corrected e-mail address has been provided, and such attempted electronic notice shall be<br>ineffective and deemed to not have been given. Each party agrees to promptly notify the other<br>parties of any change in its e-mail address, and that failure to do so shall not affect the foregoing.<br>8.4 Severability. If any part or provision of this Agreement is held<br>unenforceable or in conflict with the applicable laws or regulations of any jurisdiction, the invalid<br>or unenforceable part or provisions shall be replaced with a provision which accomplishes, to the<br>extent possible, the original business purpose of such part or provision in a valid and enforceable<br>manner, and the remainder of this Agreement shall remain binding upon the parties hereto.<br>8.5 Governing Law; Submission to Jurisdiction; Venue; Waiver of Trial by Jury.<br>(a) This Agreement shall be governed by, and construed in accordance<br>with, the laws of the State of Delaware without regard to choice of laws or conflicts of laws<br>provisions thereof that would require the application of the laws of any other jurisdiction.<br>(b) The Company and each of the Investors hereby irrevocably and<br>unconditionally:<br>(i) submits for itself and its property in any legal action or proceeding<br>relating solely to this Agreement or the transactions contemplated hereby, to the general<br>jurisdiction of the Court of Chancery in the State of Delaware or a United States Federal court<br>sitting in the State of Delaware;<br>(ii) consents that any such action or proceeding may be brought in such<br>courts, and waives any objection that it may now or hereafter have to the venue of any such action<br>or proceeding in any such court or that such action or proceeding was brought in an inconvenient<br>court and agrees not to plead or claim the same to the extent permitted by applicable law;<br>(iii) agrees that service of process in any such action or proceeding may<br>be effected by mailing a copy thereof by registered or certified mail (or any substantially similar<br>form of mail), postage prepaid, to the party, as the case may be, at its address set forth in Section<br>8.2 or at such other address of which the other party shall have been notified pursuant thereto;<br>(iv) agrees that nothing herein shall affect the right to effect service of<br>process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction<br>for recognition and enforcement of any judgment or if jurisdiction in the courts referenced in the<br>foregoing clause (i) are not available despite the intentions of the parties hereto;<br>(v) agrees that final judgment in any such suit, action or proceeding<br>brought in such a court may be enforced in the courts of any jurisdiction to which such party is<br>subject by a suit upon such judgment, provided that service of process is effected upon such party<br>in the manner specified herein or as otherwise permitted by law;<br>(vi) agrees that to the extent that such party has or hereafter may acquire<br>any immunity from jurisdiction of any court or from any legal process with respect to itself or its<br>property, such party hereby irrevocably waives such immunity in respect of its obligations under<br>this Agreement, to the extent permitted by law; and
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40<br>(vii) irrevocably and unconditionally waives trial by jury in any legal<br>action or proceeding in relation to this Agreement.<br>8.6 Waiver. No waiver of any term, provision or condition of this Agreement,<br>whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or be<br>construed as, a further or continuing waiver of any such term, provision or condition or as a waiver<br>of any other term, provision or condition of this Agreement.<br>8.7 Expenses. Except as expressly set forth in the Transaction Agreements to<br>the contrary, each party shall pay its own out-of-pocket fees and expenses, including the fees and<br>expenses of attorneys, accountants and consultants employed by such party, incurred in connection<br>with the proposed investment in the Securities and the consummation of the transactions<br>contemplated thereby; provided, however, that the Company shall pay all Transfer Agent fees<br>(including, without limitation, any fees required for same-day processing of any instruction letter<br>delivered by the Company), stamp taxes and other taxes (other than income taxes) and duties levied<br>in connection with the delivery of any Securities to the Investors. Notwithstanding the foregoing,<br>the Company shall pay the reasonable fees and expenses of Stradley Ronon Stevens Young, LLP<br>and Olshan Frome Wolosky LLP, counsel for certain Investors, in amounts not to exceed $30,000<br>or $60,000, respectively, payable at the First Closing Date.<br>8.8 Assignment. None of the parties may assign its rights or obligations under<br>this Agreement or designate another person (i) to perform all or part of its obligations under this<br>Agreement or (ii) to have all or part of its rights and benefits under this Agreement, in each case<br>without the prior written consent of (x) the Company, in the case of an Investor, and (y) the<br>Investors, in the case of the Company, provided that an Investor may, without the prior consent of<br>the Company, assign its rights to purchase the Securities hereunder to any of its Affiliates or to<br>any other investment funds or accounts managed or advised by the investment manager who acts<br>on behalf of such Investor (provided each such assignee agrees to be bound by the terms of this<br>Agreement and makes the same representations and warranties set forth in Section 4 ). In the event<br>of any assignment in accordance with the terms of this Agreement, the assignee shall specifically<br>assume and be bound by the provisions of this Agreement by executing a writing agreeing to be<br>bound by and subject to the provisions of this Agreement and shall deliver an executed counterpart<br>signature page to this Agreement and, notwithstanding such assumption or agreement to be bound<br>hereby by an assignee, no such assignment shall relieve any party assigning any interest hereunder<br>from its obligations or liability pursuant to this Agreement.<br>8.9 Confidential Information.<br>(a) Each Investor covenants that until such time as the transactions<br>contemplated by this Agreement and any material non-public information provided to such<br>Investor (including any financial results of the Company for any completed by not yet publicly<br>reported period) are publicly disclosed by the Company, such Investor will maintain the<br>confidentiality of all disclosures made to it in connection with this transaction (including the<br>existence and terms of this transaction), other than to such Investor’s outside attorney, accountant,<br>auditor or investment advisor only to the extent necessary to permit evaluation of the investment,<br>and the performance of the necessary or required tax, accounting, financial, legal, or administrative<br>tasks and services and other than as may be required by law.
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41<br>(b) The Company may request from the Investors such reasonable and<br>customary additional information as the Company may deem necessary to evaluate the eligibility<br>of the Investor to acquire the Securities, and the Investor shall promptly provide such information<br>as may reasonably be requested to the extent readily available; provided, that the Company agrees<br>to keep any such information provided by the Investor confidential, except (i) as required by the<br>federal securities laws, rules or regulations and (ii) to the extent such disclosure is required by<br>other laws, rules or regulations, at the request of the staff of the SEC or regulatory agency or under<br>the regulations of NYSE American The Investor acknowledges that the Company may file a copy<br>of this Agreement and the Registration Rights Agreement with the SEC as exhibit to a periodic<br>report or a registration statement of the Company.<br>8.10 Third Parties. Nothing in this Agreement, express or implied, is intended to<br>confer on any Person other than the parties to this Agreement any rights, remedies, claims, benefits,<br>obligations or liabilities under or by reason of this Agreement, and no Person that is not a party to<br>this Agreement (including, without limitation, any partner, member, shareholder, director, officer,<br>employee or other beneficial owner of any party to this Agreement, in its own capacity as such or<br>in bringing a derivative action on behalf of a party to this Agreement) shall have any standing as<br>a third party beneficiary with respect to this Agreement or the transactions contemplated hereby.<br>Notwithstanding the foregoing, the Indemnified Persons are intended third-party beneficiaries of<br>Section 5.9.<br>8.11 Independent Nature of Investors’ Obligations and Right. The obligations of<br>each Investor under this Agreement are several and not joint with the obligations of any other<br>Investor, and no Investor shall be responsible in any way for the performance obligations of any<br>other Investor under this Agreement. Nothing contained herein, and no action taken by any<br>Investor pursuant hereto, shall be deemed to constitute the Investors as, and the Company<br>acknowledges that the Investors do not so constitute, a partnership, an association, a joint venture<br>or any other kind of entity, or create a presumption that the Investors are in any way acting in<br>concert or as a group, and the Company will not assert any such claim with respect to such<br>obligations or the transactions contemplated by this Agreement. The Company acknowledges and<br>each Investor confirms that it has independently participated in the negotiation of the transaction<br>contemplated hereby with the advice of its own counsel and advisors. Each Investor also<br>acknowledges that Latham & Watkins LLP has not rendered legal advice to such Investor. Each<br>Investor shall be entitled to independently protect and enforce its rights, including, without<br>limitation, the rights arising out of this Agreement, and it shall not be necessary for any other<br>Investor to be joined as an additional party in any proceeding for such purpose. The Company has<br>elected to provide all Investors with the same terms and Transaction Agreements for the<br>convenience of the Company and not because it was required or requested to do so by any Investor.<br>8.12 Headings. The titles, subtitles and headings in this Agreement are for<br>convenience of reference and shall not form part of, or affect the interpretation of, this Agreement.<br>8.13 Counterparts. This Agreement may be executed in two or more identical<br>counterparts, all of which shall be considered one and the same agreement and shall become<br>effective when counterparts have been signed by each party and delivered to the other party;<br>provided that a facsimile or pdf signature including any electronic signatures complying with the<br>U.S. federal ESIGN Act of 2000, e.g., www.docusign.com shall be considered due execution and
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42<br>shall be binding upon the signatory thereto with the same force and effect as if the signature were<br>an original, not a facsimile or pdf (or other electronic reproduction of a) signature.<br>8.14 Entire Agreement; Amendments. This Agreement and the other Transaction<br>Agreements (including all schedules and exhibits hereto and thereto), together with any side letter<br>agreements with any of the Investors, constitute the entire agreement between the parties hereto<br>respecting the subject matter of this Agreement and supersedes all prior agreements, negotiations,<br>understandings, representations and statements respecting the subject matter of this Agreement,<br>whether written or oral. No amendment, modification, alteration, or change in any of the terms of<br>this Agreement shall be valid or binding upon the parties hereto unless made in writing and duly<br>executed by the Company and the Investors of at least a majority in interest of the Securities then<br>held by the Investors, provided that prior to the Closing the consent of all Investors shall be<br>required Notwithstanding the foregoing, this Agreement may not be amended and the observance<br>of any term of this Agreement may not be waived with respect to any Investor without the written<br>consent of such Investor unless such amendment or waiver applies to all Investors in the same<br>fashion. The Company, on the one hand, and each Investor, on the other hand, may by an<br>instrument signed in writing by such parties waive the performance, compliance or satisfaction by<br>such Investor or the Company, respectively, with any term or provision of this Agreement or any<br>condition hereto to be performed, complied with or satisfied by such Investor or the Company,<br>respectively.<br>8.15 Survival. The covenants, representations and warranties made by each party<br>hereto contained in this Agreement shall survive the Closing and the delivery of the Securities in<br>accordance with their respective terms. Each Investor shall be responsible only for its own<br>representations, warranties, agreements and covenants hereunder.<br>8.16 Contract Interpretation. This Agreement is the joint product of each Investor<br>and the Company and each provision of this Agreement has been subject to the mutual<br>consultation, negotiation and agreement of such parties and shall not be construed for or against<br>any party hereto.<br>8.17 Arm’s Length Negotiations. For the avoidance of doubt, the parties<br>acknowledge and confirm that the terms and conditions of the Securities were determined as a<br>result of arm’s-length negotiations.<br>[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day<br>and year first above written.<br>COMPANY:<br>AEON BIOPHARMA, INC.<br>By: /s/ Robert Bancroft<br>Name: Robert Bancroft<br>Title: President and CEO
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day<br>and year first above written.<br>INVESTORS:<br>DANIEL HERR AND LAUREN RIMOIN<br>LIVING TRUST<br>By: /s/ Daniel Herr<br>Name: Daniel Herr<br>Title: Trustee<br>MK PLUMERIA, LLC<br>By: /s/ Daniel Herr<br>Name: Daniel Herr<br>Title: Manager<br>Address:<br>[***]<br>Email: [***]<br>HFCG, LLC<br>By: /s/ Matthew Okkerse<br>Name: Matthew Okkerse<br>Title: Manager<br>Address:<br>[***]<br>Email: [***]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day<br>and year first above written.<br>INVESTORS:<br>POINTILLIST GLOBAL MACRO SERIES OF<br>POINTILLIST PARTNERS LLC<br>By: /s/ Jorey Chernett<br>Name: Jorey Chernett<br>Title: Managing Member<br>JOREY A CHERNETT REVOCABLE LIVING<br>TRUST<br>By: /s/ Jorey Chernett<br>Name: Jorey Chernett<br>Title: Trustee<br>Address:<br>[***]<br>Email: [***]
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EXHIBIT A<br>INVESTORS<br>First Closing:<br>Investor Name First<br>Closing<br>Shares<br>Share<br>Purchase<br>Price<br>Shares<br>Underlying First<br>Closing Pre-Funded<br>Warrants<br>Pre-Funded<br>Warrant<br>Purchase Price<br>First Closing<br>Purchase Price<br>Daniel Herr and<br>Lauren Rimoin<br>Living Trust<br>- - - - -<br>MK Plumeria,<br>LLC<br>- - 491,226 $447,752.50 $447,752.50<br>HFCG, LLC - - 491,226 $447,752.50 $447,752.50<br>Pointilist Global<br>Macro Series of<br>Pointilist<br>Partners LLC<br>- - 589,472 $537,303.73 $537,303.73<br>Jorey A<br>Chernett<br>Revocable<br>Living Trust<br>- - 392,981 $358,202.19 $358,202.19<br>TOTAL: - - 1,964,905 $1,791,010.92 $1,791,010.92<br>Second Closing:<br>Investor Name Second<br>Closing<br>Shares<br>Share<br>Purchase<br>Price<br>Shares<br>Underlying<br>Second Closing<br>Pre-Funded<br>Warrants<br>Pre-Funded<br>Warrant<br>Purchase Price<br>Second Closing<br>Purchase Price<br>Daniel Herr<br>and Lauren<br>Rimoin Living<br>Trust<br>- - 1,096,972 $999,889.98 $999,889.98<br>MK Plumeria,<br>LLC<br>- - 605,745 $552,136.57 $552,136.57<br>HFCG, LLC - - 605,745 $552,136.57 $552,136.57<br>Pointilist<br>Global Macro<br>Series of<br>- - 1,385,077 $1,262,497.69 $1,262,497.69
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Pointilist<br>Partners LLC<br>Jorey A<br>Chernett<br>Revocable<br>Living Trust<br>- - 923,385 $841,665.43 $841,665.43<br>TOTAL: - - 4,616,924 $4,208,326.24 $4,208,326.24<br>At the Second Closing, each Investor will receive a Common Warrant for a number of<br>shares equal to the sum of such Investor’s (a) First Closing Shares, (b) Second Closing Shares,<br>(c) First Closing Pre-Funded Warrant Shares and (d) Second Closing Pre-Funded Warrant<br>Shares, with an exercise price per share of 120% of the Share Price.<br>Investment Percentage:<br>Investor Name Pre-Exchange Investment Percentage*<br>Daniel Herr and Lauren Rimoin Living Trust 5.955%<br>MK Plumeria, LLC 5.955%<br>HFCG, LLC 5.955%<br>Pointilist Global Macro Series of Pointilist Partners LLC 10.719%<br>Jorey A Chernett Revocable Living Trust 7.146%<br>* Calculated as Investor’s Investment Shares divided by the sum of (i) such Investor’s<br>Investment Shares plus (ii) the other Investors’ Investment Shares (assuming all Shares and Pre-Funded Warrants are purchased in accordance with this Agreement) plus (iii) the total shares of<br>Common Stock outstanding immediately prior to the execution of this Agreement
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Exhibit 10.2

US-DOCS\165131843.6<br>REGISTRATION RIGHTS AGREEMENT<br>THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of [  ], 2025,<br>is entered into by and among AEON Biopharma, Inc., a Delaware corporation (the “Company”), and the<br>several investors signatory hereto (individually as an “Investor” and collectively together with their<br>respective permitted assigns, the “Investors”). Capitalized terms used herein and not otherwise defined<br>herein shall have the respective meanings set forth in the Securities Purchase Agreement by and among the<br>parties hereto, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from<br>time to time, the “Purchase Agreement”).<br>WHEREAS:<br>A. Upon the terms and subject to the conditions of the Purchase Agreement, the Company has<br>agreed to issue to the Investors, and the Investors have agreed to purchase, severally and not jointly (A) (i)<br>shares (the “Initial Shares”) of the Company's Class A common stock, par value $0.0001 per share (the<br>“Common Stock”), and/or (ii) pre-funded warrants to purchase shares of Common Stock (the “Pre-Funded Warrants”)and (B) Common Warrants. The Initial Shares and the shares of Common Stock<br>issuable upon exercise of the Pre-Funded Warrants, Common Warrants and True-Up Warrants<br>(collectively, the “Warrant Shares”) are collectively referred to herein as the “Shares.”<br>B. To induce the Investors to enter into the Purchase Agreement, the Company has agreed to<br>provide certain registration rights under the U.S. Securities Act of 1933, as amended, and the rules and<br>regulations thereunder, or any similar successor statute (collectively, the “Securities Act”), and applicable<br>state securities laws.<br>NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein<br>and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,<br>the Company and the Investors hereby agree as follows:<br>1. DEFINITIONS.<br>For purposes of this Agreement, the following terms shall have the following meanings:<br>(a) “Person” means an individual, partnership, corporation, limited liability company,<br>business trust, joint stock company, trust, unincorporated association, joint venture or any other entity or<br>organization.<br>(b) “Prospectus” means (i) the prospectus included in any Registration Statement, as<br>amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any<br>portion of the Registrable Securities covered by such Registration Statement and by all other amendments<br>and supplements to the prospectus, including post-effective amendments and all material incorporated by<br>reference in such prospectus, and (ii) any “free writing prospectus” as defined in Rule 405 under the 1933<br>Act, relating to the terms of the offering of any portion of the Registrable Securities.<br>(c) “Register,” “Registered,” and “Registration” refer to a registration effected by<br>preparing and filing one or more registration statements of the Company in compliance with the Securities<br>Act and providing for offering securities on a continuous basis, and the declaration or ordering of<br>effectiveness of such registration statement(s) by the U.S. Securities and Exchange Commission (the<br>“SEC”).<br>(d) “Registrable Securities” means the Shares and any Common Stock issued or<br>issuable with respect to the Shares as a result of any stock split or subdivision, stock dividend,
2<br>US-DOCS\165131843.6<br>recapitalization, exchange or similar event. Registrable Securities shall cease to be Registrable Securities<br>upon the date on which the Investors shall have resold all the Registrable Securities covered by the<br>Registration Statement.<br>(e) “Registration Expenses” means all registration and filing fee expenses incurred<br>by the Company in effecting any registration pursuant to this Agreement, including (i) all registration,<br>qualification, and filing fees, printing expenses, and any other fees and expenses associated with filings<br>required to be made with the SEC, FINRA or any other regulatory authority, (ii) all fees and expenses in<br>connection with compliance with or clearing the Registrable Securities for sale under any securities or<br>“Blue Sky” laws, (iii) all printing, duplicating, word processing, messenger, telephone, facsimile and<br>delivery expenses, and (iv) all fees and disbursements of counsel for the Company and of all independent<br>certified public accountants of the Company (including the expenses of any special audit and cold comfort<br>letters required by or incident to such performance).<br>(f) “Registration Statement” means any registration statement of the Company filed<br>with, or to be filed with, the SEC under the Securities Act, that Registers Registrable Securities, including<br>the related Prospectus, amendments and supplements to such registration statement, including pre- and<br>post-effective amendments, and all exhibits and all material incorporated by reference in such registration<br>statement as may be necessary to comply with applicable securities laws. “Registration Statement” shall<br>also include a New Registration Statement, as amended when each became effective, including all<br>documents filed as part thereof or incorporated by reference therein, and including any information<br>contained in a Prospectus subsequently filed with the SEC.<br>(g) “Required Investors” means the Investors holding a majority of the Registrable<br>Securities outstanding from time to time.<br>(h) “Selling Expenses” means all underwriting discounts and selling commissions<br>applicable to the sale of Registrable Securities and all similar fees and commissions relating to the Investors’<br>disposition of the Registrable Securities.<br>2. REGISTRATION.<br>(a) Mandatory Registration. The Company shall, as promptly as reasonably<br>practicable and in any event no later than 20 days following the earlier of (i) the Second Closing or (ii) the<br>termination of the Securities Purchase Agreement after the First Closing and prior to the Second Closing,<br>(the “Filing Deadline”), prepare and file with the SEC an initial Registration Statement (the “Initial<br>Registration Statement”) covering the resale of all Registrable Securities. Before filing the Registration<br>Statement, the Company shall furnish to the Investors a copy of the Registration Statement. The Investors<br>and their counsel shall have at least three Business Days prior to the anticipated filing date of a Registration<br>Statement to review and comment upon such Registration Statement and any amendment or supplement to<br>such Registration Statement and any related Prospectus, prior to its filing with the SEC. Subject to any SEC<br>comments, such Registration Statement shall include the plan of distribution substantially in the form<br>attached hereto as Exhibit A. Such Registration Statement also shall cover, to the extent allowable under<br>the 1933 Act and the rules promulgated thereunder (including Rule 416), such indeterminate number of<br>additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with<br>respect to the Registrable Securities. Such Registration Statement shall not include any shares of Common<br>Stock or other securities for the account of any other holder of securities of the Company without the prior<br>written consent of the Required Investors. The Company shall (a) use commercially reasonable efforts to<br>address in each such document prior to being so filed with the SEC such comments as the Investor or its<br>counsel reasonably proposed by the Investor, and (b) not file any Registration Statement or Prospectus or
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3<br>US-DOCS\165131843.6<br>any amendment or supplement thereto containing information regarding the Investor to which Investor<br>reasonably objects, unless such information is required to comply with any applicable law or regulation.<br>The Investors shall furnish all information reasonably requested by the Company and as shall be reasonably<br>required in connection with any registration referred to in this Agreement.<br>(b) Effectiveness. The Company shall use its reasonable best efforts to have the Initial<br>Registration Statement and any amendment declared effective by the SEC at the earliest possible date but<br>no later than the earlier of (a) the 75th calendar day following the initial filing date of the Initial Registration<br>Statement if the SEC notifies the Company that it will “review” the Initial Registration Statement and (b)<br>the fifth Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by<br>the SEC that the Initial Registration Statement will not be “reviewed” or will not be subject to further review<br>(the “Effectiveness Deadline”). The Company shall notify the Investor by e-mail as promptly as<br>practicable, and in any event, within 24 hours, after the Registration Statement is declared effective or is<br>supplemented and shall provide the Investor with copies of any Prospectus to be used in connection with<br>the sale or other disposition of the securities covered thereby. The Company shall use reasonable best efforts<br>to keep the Initial Registration Statement continuously effective pursuant to Rule 415 promulgated under<br>the Securities Act and available for the resale by the Investors of all of the Registrable Securities covered<br>thereby at all times until the earliest to occur of the following events: (i) the date on which the Investors<br>shall have resold all the Registrable Securities covered thereby; and (ii) the date on which the Registrable<br>Securities may be resold by the Investors without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144 or any other rule of similar effect (the “Registration Period”).<br>The Initial Registration Statement (including any amendments or supplements thereto and prospectuses<br>contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact<br>required to be stated therein, or necessary to make the statements therein, in light of the circumstances in<br>which they were made, not misleading.<br>(c) Sufficient Number of Shares Registered. In the event the number of shares<br>available under the Initial Registration Statement at any time is insufficient to cover the Registrable<br>Securities, the Company shall, to the extent necessary and permissible, amend the Initial Registration<br>Statement or file a new registration statement (together with any prospectuses or prospectus supplements<br>thereunder, a “New Registration Statement”), so as to cover all of such Registrable Securities as soon as<br>reasonably practicable, but in any event not later than ten Business Days after the necessity therefor arises<br>(the “New Registration Filing Deadline”). The Company shall use its reasonable best efforts to have such<br>amendment and/or New Registration Statement become effective as soon as reasonably practicable<br>following the filing thereof but no later than the earlier of (a) the 75th calendar day following the initial<br>filing date of the New Registration Statement if the SEC notifies the Company that it will “review” the New<br>Registration Statement and (b) the fifth Business Day after the date the Company is notified (orally or in<br>writing, whichever is earlier) by the SEC that the New Registration Statement will not be “reviewed” or<br>will not be subject to further review (the earlier of such dates, the “New Registration Effectiveness<br>Deadline”). The provisions of Section 2(a) and (b) shall apply to the New Registration Statement, except<br>as modified hereby.<br>(d) Liquidated Damages. If: (i) the Initial Registration Statement is not filed with the<br>SEC on or prior to the Filing Deadline (if the Company files the Initial Registration Statement without<br>affording the Investors the opportunity to review and comment on the same as required by Section 2(a), the<br>Company shall be deemed not to have satisfied this clause (i)), or (ii) the Company fails to file with the<br>SEC a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the<br>SEC pursuant to the Securities Act within five (5) Business Days of the date that the Company is notified<br>(orally or in writing, whichever is earlier) by the staff of the SEC that such Registration Statement will not<br>be “reviewed” or will not be subject to further review, or (iii) prior to the effective date of a Registration
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4<br>US-DOCS\165131843.6<br>Statement, the Company fails to file a pre-effective amendment and otherwise respond in writing to<br>comments made by the staff of the SEC in respect of such Registration Statement within fifteen (15)<br>calendar days after receipt of comments by or notice from the staff of the SEC that such amendment is<br>required in order for such Registration Statement to be declared effective, or (iv) a Registration Statement<br>registering for resale all of the Registrable Securities is not declared effective by the staff of the SEC on or<br>before the Effectiveness Deadline of the Initial Registration Statement, or (v) after the effective date of a<br>Registration Statement, such Registration Statement ceases for any reason to remain continuously effective<br>as to all Registrable Securities included therein, or the Investors are otherwise not permitted to utilize the<br>Prospectus therein to resell such Registrable Securities, for more than an Allowed Delay (defined below)<br>(any such failure or breach specified in the immediately preceding clauses (i) through (v) being referred to<br>as an “Event,” and for purposes of clauses (i) and (iv), the date on which such Event occurs, for purposes<br>of clause (ii) the date on which such five (5) Business Day period is exceeded, for purposes of clause (iii)<br>the date on which such fifteen (15) calendar day period is exceeded, and for purposes of clause (v) the date<br>on which such fifteen (15) or twenty (20) calendar day period, as applicable, is exceeded, being referred to<br>as the “Event Date”), then, in addition to any other rights the Investors may have hereunder or under<br>applicable law, on each such Event Date and on each monthly anniversary thereof (if the applicable Event<br>shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each<br>Investor an amount in cash, as partial liquidated damages and not as a penalty, equal to the product of 1.0%<br>multiplied by the aggregate amount paid by such Investor to the Company for the securities issued pursuant<br>to the Purchase Agreement. The parties agree that the maximum aggregate liquidated damages payable to<br>any Investor under this Agreement shall be 10.0% of the aggregate amount paid by such Investor to the<br>Company for the securities issued pursuant to the Purchase Agreement. If the Company fails to pay any<br>partial liquidated damages pursuant to this Section 2(d) in full within seven (7) days after the date payable,<br>the Company shall pay interest thereon at a rate of 18% per annum (or such lesser maximum amount as<br>permitted by applicable law) to the Investor, accruing daily from the date such partial liquidated damages<br>are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages<br>pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure<br>of an Event.<br>(e) Allowable Delays. On no more than two occasions and for not more than 30<br>consecutive days or for a total of not more than 60 days in any 12 month period, the Company may delay<br>the effectiveness of the Initial Registration Statement or any other Registration Statement, or suspend the<br>use of any Prospectus, in the event that the Company or Board of Directors determines, in good faith and<br>upon advice of legal counsel, that such delay or suspension is necessary to (A) delay the disclosure of<br>material non-public information concerning the Company, the disclosure of which at the time is not, in the<br>good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the<br>affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus<br>shall not include an untrue statement of a material fact or omit to state a material fact required to be stated<br>therein or necessary to make the statements therein, in the case of the Prospectus in light of the<br>circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the<br>Company shall promptly (a) notify each Investor in writing of the commencement of an Allowed Delay,<br>but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales<br>under the applicable Registration Statement until the end of the Allowed Delay and (c) use commercially<br>reasonable efforts to terminate an Allowed Delay as promptly as practicable.<br>(f) Rule 415; Cutback. If at any time the SEC takes the position that the offering of<br>some or all of the Registrable Securities in any Registration Statement is not eligible to be made on a<br>delayed or continuous basis under the provisions of Rule 415 under the Securities Act (provided, however,<br>the Company shall be obligated to use reasonable best efforts to advocate with the SEC for the registration
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5<br>US-DOCS\165131843.6<br>of all of the Registrable Securities) or requires any Investor to be named as an “underwriter,” the Company<br>shall (i) promptly notify each holder of Registrable Securities thereof and (ii) make commercially<br>reasonable efforts to persuade the SEC that the offering contemplated by such Registration Statement is a<br>valid secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415 and that<br>none of the Investors is an “underwriter.” The Investors shall have the right to select one legal counsel,<br>which counsel shall be selected by the Required Investors, to review and oversee any registration or matters<br>pursuant to this Section 2(f), including participation in any meetings or discussions with the SEC regarding<br>the SEC’s position and to comment on any written submission made to the SEC with respect thereto. No<br>such written submission with respect to this matter shall be made to the SEC to which any Investor’s counsel<br>reasonably objects. In the event that, despite the Company’s reasonable best efforts and compliance with<br>the terms of this Section 2(f), the SEC refuses to alter its position, the Company shall (i) remove from such<br>Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) and/or (ii) agree<br>to such restrictions and limitations on the registration and resale of the Registrable Securities as the SEC<br>may require to assure the Company’s compliance with the requirements of Rule 415 (collectively, the “SEC<br>Restrictions”); provided, however, that the Company shall not name any Investor as an “underwriter” in<br>such Registration Statement without the prior written consent of such Investor (provided that, in the event<br>an Investor withholds such consent, the Company shall have no obligation hereunder to include any<br>Registrable Securities of such Investor in any Registration Statement covering the resale thereof until such<br>time as the SEC no longer requires such Investor to be named as an “underwriter” in such Registration<br>Statement or such Investor otherwise consents in writing to being so named). Any cut-back imposed on the<br>Investors pursuant to this Section 2(f) shall be allocated among the Investors on a pro rata basis and shall<br>be applied first to any of the Registrable Securities of such Investor as such Investor shall designate, unless<br>the SEC Restrictions otherwise require or provide or the Investors otherwise agree.<br>3. RELATED COMPANY OBLIGATIONS.<br>With respect to the Registration Statement and whenever any Registrable Securities are to be<br>Registered pursuant to Section 2, including on the Initial Registration Statement or on any New Registration<br>Statement, the Company shall use its reasonable best efforts to effect the registration of the Registrable<br>Securities in accordance with the intended method of disposition thereof and, pursuant thereto, the<br>Company shall have the following obligations:<br>(a) Notifications. The Company will promptly notify the Investors of the time when<br>any subsequent amendment to the Initial Registration Statement or any New Registration Statement, other<br>than documents incorporated by reference, has been filed with the SEC and/or has become effective or<br>where a receipt has been issued therefor or any subsequent supplement to a Prospectus has been filed and<br>of any request by the SEC for any amendment or supplement to the Registration Statement, any New<br>Registration Statement or any Prospectus or for additional information.<br>(b) Amendments. The Company will prepare and file with the SEC any amendments,<br>post-effective amendments or supplements to the Initial Registration Statement, any New Registration<br>Statement or any Prospectus, as applicable, that, (a) as may be necessary to keep such Registration<br>Statement effective for the Effectiveness Period and to comply with the provisions of the Securities Act<br>and the Securities Exchange Act of 1934, as amended (the “Exchange Act”) with respect to the distribution<br>of all of the Registrable Securities covered thereby, or (b) in the reasonable opinion of the Investors and the<br>Company, as may be necessary or advisable in connection with any acquisition or sale of Registrable<br>Securities by the Investors.<br>(c) Investor Review. The Company will not file any amendment or supplement to the<br>Registration Statement, any New Registration Statement or any Prospectus, other than documents
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6<br>US-DOCS\165131843.6<br>incorporated by reference, relating to the Investors, the Registrable Securities or the transactions<br>contemplated hereby unless (A) the Investors and their counsel shall have been advised and afforded the<br>opportunity to review and comment thereon at least three (3) Business Days prior to filing with the SEC<br>and (B) the Company shall have given reasonable due consideration to any comments thereon received<br>from the Investors or their counsel.<br>(d) Copies Available. The Company will furnish to any Investor whose Registrable<br>Securities are included in any Registration Statement and its counsel copies of the Initial Registration<br>Statement, any Prospectus thereunder (including all documents incorporated by reference therein), any<br>Prospectus supplement thereunder, any New Registration Statement and all amendments to the Initial<br>Registration Statement or any New Registration Statement that are filed with the SEC during the<br>Registration Period (including all documents filed with or furnished to the SEC during such period that are<br>deemed to be incorporated by reference therein), each letter written by or on behalf of the Company to the<br>SEC or the staff of the SEC, and each item of correspondence from the SEC or the staff of the SEC, in each<br>case relating to such Registration Statement (other than any portion thereof which contains information for<br>which the Company has sought confidential treatment) and such other documents as Investor may<br>reasonably request in order to facilitate the disposition of the Registrable Securities owned by Investor that<br>are covered by such Registration Statement, in each case as soon as reasonably practicable upon such<br>Investor’s request and in such quantities as such Investor may from time to time reasonably request;<br>provided, however, that the Company shall not be required to furnish any document to the Investor to the<br>extent such document is available on EDGAR.<br>(e) Notification of Stop Orders; Material Changes. The Company shall use<br>commercially reasonable efforts to (i) prevent the issuance of any stop order or other suspension of<br>effectiveness and, (ii) if such order is issued, obtain the withdrawal of any such order as soon as practicable.<br>The Company shall advise the Investors promptly (but in no event later than 24 hours) and shall confirm<br>such advice in writing, in each case: (i) of the Company’s receipt of notice of any request by the SEC or<br>any other federal or state governmental authority for amendment of or a supplement to the Registration<br>Statement or any Prospectus or for any additional information; (ii) of the Company’s receipt of notice of<br>the issuance by the SEC or any other federal or state governmental authority of any stop order suspending<br>the effectiveness of the Initial Registration Statement or prohibiting or suspending the use of any Prospectus<br>or Prospectus supplement, or any New Registration Statement, or of the Company’s receipt of any<br>notification of the suspension of qualification of the Registrable Securities for offering or sale in any<br>jurisdiction or the initiation or contemplated initiation of any proceeding for such purpose; and (iii) of the<br>Company becoming aware of the happening of any event, which makes any statement of a material fact<br>made in any Registration Statement or any Prospectus untrue or which requires the making of any additions<br>to or changes to the statements then made in any Registration Statement or any Prospectus in order to state<br>a material fact required by the Securities Act to be stated therein or necessary in order to make the statements<br>then made therein (in the case of any Prospectus, in light of the circumstances under which they were made)<br>not misleading, or of the necessity to amend any Registration Statement or any Prospectus to comply with<br>the Securities Act or any other law. The Company shall not be required to disclose to the Investors the<br>substance of specific reasons of any of the events set forth in clause (i) to (iii) of the immediately preceding<br>sentence (each, a “Suspension Event”), but rather, shall only be required to disclose that the event has<br>occurred. If at any time the SEC, or any other federal or state governmental authority shall issue any stop<br>order suspending the effectiveness of any Registration Statement or prohibiting or suspending the use of<br>any Prospectus or Prospectus supplement, the Company shall use its reasonable best efforts to obtain the<br>withdrawal of such order at the earliest practicable time. The Company shall furnish to the Investors,<br>without charge, a copy of any correspondence from the SEC or the staff of the SEC, or any other federal or<br>state governmental authority to the Company or its representatives relating to the Initial Registration<br>Statement, any New Registration Statement or any Prospectus, or Prospectus supplement as the case may
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7<br>US-DOCS\165131843.6<br>be. In the event of a Suspension Event set forth in clause (iii) of the first sentence of this Section 3(e), the<br>Company will use its commercially reasonable efforts to publicly disclose such event as soon as reasonably<br>practicable, or otherwise resolve the matter such that sales under Registration Statements may resume;<br>provided, however, that if the Company has a bona fide business purpose for not making such information<br>public, the Company may suspend the use of all Registration Statements for up to 60 consecutive calendar<br>days; provided, further, that the Company may not suspend the use of all Registration Statements more than<br>twice, or for more than 90 total calendar days, in each case during any twelve-month period.<br>(f) Confirmation of Effectiveness. If reasonably requested by an Investor at any time<br>in respect of any Registration Statement, the Company shall deliver to such Investor a written confirmation<br>(email being sufficient) from Company’s counsel of whether or not the effectiveness of such Registration<br>Statement has lapsed at any time for any reason (including, without limitation, the issuance of a stop order)<br>and whether or not such Registration Statement is currently effective and available to the Company for sale<br>of Registrable Securities.<br>(g) Listing. The Company shall use best efforts to cause all Registrable Securities<br>covered by a Registration Statement to be listed on each national securities exchange on which similar<br>securities issued by the Company are then listed.<br>(h) Compliance. The Company shall otherwise use best efforts to comply with all<br>applicable rules and regulations of the SEC under the Securities Act and the Exchange Act, including,<br>without limitation, Rule 172 under the Securities Act, file any final prospectus, including any supplement<br>or amendment thereof, with the SEC pursuant to Rule 424 under the Securities Act, promptly inform the<br>Investor in writing if, at any time during the Effectiveness Period, the Company does not satisfy the<br>conditions specified in Rule 172 and, as a result thereof, the Investor is required to deliver a prospectus in<br>connection with any disposition of Registrable Securities and take such other actions as may be reasonably<br>necessary to facilitate the registration of the Registrable Securities hereunder, and make available to its<br>security holders, as soon as reasonably practicable, but not later than the Availability Date (as defined<br>below), an earnings statement covering a period of at least 12 months, beginning after the effective date of<br>each Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the<br>Securities Act, including Rule 158 promulgated thereunder (for the purpose of this subsection 3(h),<br>“Availability Date” means the 45th day following the end of the fourth fiscal quarter that includes the<br>effective date of such Registration Statement, except that, if such fourth fiscal quarter is the last quarter of<br>the Company’s fiscal year, “Availability Date” means the 90th day after the end of such fourth fiscal<br>quarter).<br>(i) Blue-Sky. The Company shall register or qualify or cooperate with the Investor<br>and their counsel in connection with the registration or qualification of such Registrable Securities for the<br>offer and sale under the securities or blue sky laws of such jurisdictions reasonably requested by the<br>Investor; provided, however, that the Company shall not be required in connection therewith or as a<br>condition thereto to (i) qualify to do business in any jurisdiction where it would not otherwise be required<br>to qualify but for this Section 3(i), (ii) subject itself to general taxation in any jurisdiction where it would<br>not otherwise be so subject but for this Section 3(i), or (iii) file a general consent to service of process in<br>any such jurisdiction.<br>(j) Rule 144. With a view to making available to the Investors the benefits of Rule 144<br>(or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investors<br>to sell shares of Common Stock to the public without registration, the Company covenants and agrees to<br>use its reasonable best efforts to: (i) make and keep adequate current public information available, as those<br>terms are understood and defined in Rule 144, until the earlier of (A) six months after such date as all of
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8<br>US-DOCS\165131843.6<br>the Registrable Securities may be sold without restriction by the holders thereof pursuant to Rule 144 or<br>any other rule of similar effect or (B) such date as there are no longer Registrable Securities; and (ii) file<br>with the SEC in a timely manner all reports and other documents required of the Company under the<br>Exchange Act; (iii) furnish electronically to each Investor upon request, as long as such Investor owns any<br>Registrable Securities, (A) a written statement by the Company that it has complied with the reporting<br>requirements of the Exchange Act, (B) a copy of or electronic access to the Company’s most recent Annual<br>Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be<br>reasonably requested in order to avail such Investor of any rule or regulation of the SEC that permits the<br>selling of any such Registrable Securities without registration.<br>(k) Cooperation. The Company shall cooperate with the holders of the Registrable<br>Securities to facilitate the timely preparation and delivery of certificates or uncertificated shares<br>representing the Registrable Securities to be sold pursuant to such Registration Statement or Rule 144 free<br>of any restrictive legends and representing such number of shares of Common Stock and registered in such<br>names as the holders of the Registrable Securities may reasonably request to the extent permitted by such<br>Registration Statement or Rule 144 to effect sales of Registrable Securities ; for the avoidance of doubt, the<br>Company may satisfy its obligations hereunder without issuing physical stock certificates through the use<br>of The Depository Trust Company’s Direct Registration System.<br>1<br>4. OBLIGATIONS OF THE INVESTORS.<br>(a) Investor Information. Each Investor shall provide a completed Investor<br>Questionnaire in the form attached hereto as Exhibit B in connection with the registration of the Registrable<br>Securities If the Company has not received such completed Questionnaire from an Investor within three<br>business days of the Company’s request, the Company may file the Registration Statement without<br>including such Investor’s Registrable Securities.<br>(b) Suspension of Sales. Each Investor, severally and not jointly with any other<br>Investor, agrees that, upon receipt of any notice from the Company of the existence of an Allowed Delay<br>or a Suspension Event as set forth in Section 3(e), the Investor will promptly discontinue disposition of<br>Registrable Securities pursuant to any Registration Statement covering such Registrable Securities until the<br>Investor's receipt of a notice from the Company confirming the resolution of such Allowed Delay or<br>Suspension Event and that such dispositions may again be made; provided, for the avoidance of doubt, that<br>the foregoing shall not limit the right of the Investor to sell or otherwise dispose of the Registrable Securities<br>pursuant to Rule 144 or any other exemption from the registration requirements of the Securities Act or to<br>settle a transaction pursuant to a Registration Statement as to which a contract for such sale was entered<br>into prior to such Investor’s receipt of the notice from the Company of the existence of the Allowed Delay<br>or Suspension Event. The Company shall cause its transfer agent to deliver unlegended shares of Common<br>Stock to a transferee of an Investor in accordance with any sale of Registrable Securities pursuant to a<br>Registration Statement with respect to which such Investor has entered into a contract for sale prior to such<br>Investor’s receipt of the notice from the Company of the existence of the Allowed Delay or Suspension<br>Event.<br>(c) Investor Cooperation. Each Investor, severally and not jointly with any other<br>Investor, agrees to cooperate with the Company as reasonably requested by the Company in connection<br>with the preparation and filing of any amendments and supplements to any Registration Statement or New<br>Registration Statement hereunder, unless such Investor has notified the Company in writing of its election<br>to exclude all of its Registrable Securities from such Registration Statement.
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9<br>US-DOCS\165131843.6<br>5. EXPENSES OF REGISTRATION.<br>All Registration Expenses incurred in connection with registrations pursuant to this<br>Agreement shall be borne by the Company. All Selling Expenses relating to securities registered on behalf<br>of the Investors shall be borne by the Investors pro rata on the basis of the number of Registrable Securities<br>so registered.<br>6. INDEMNIFICATION.<br>(a) To the fullest extent permitted by law, the Company will, and hereby does,<br>indemnify, hold harmless and defend the Investors, each Person, if any, who controls the Investors, the<br>members, the directors, officers, partners, employees, members, managers, agents, representatives and<br>advisors of the Investors and each Person, if any, who controls the Investors within the meaning of the<br>Securities Act or the Exchange Act (each, an “Indemnified Person”), against any losses, obligation, claims,<br>damages, liabilities, contingencies, judgments, fines, penalties, charges, costs (including, without<br>limitation, court costs and costs of preparation), reasonable and documented attorneys’ fees, amounts paid<br>in settlement or reasonable and documented expenses, (collectively, “Claims”) reasonably incurred in<br>investigating, preparing or defending any action, claim, suit, inquiry, proceeding, investigation or appeal<br>taken from the foregoing by or before any court or governmental, administrative or other regulatory agency<br>or body or the SEC, whether pending or threatened, whether or not an indemnified party is or may be a<br>party thereto (“Indemnified Damages”), to which any of them may become subject insofar as such Claims<br>(or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based<br>upon: (i) any untrue statement or alleged untrue statement or omission or alleged omission of any material<br>fact contained in any Registration Statement, any preliminary prospectus or final prospectus, or any<br>amendment or supplement thereof, or (ii) any violation or alleged violation by the Company or any of its<br>Subsidiaries of the Securities Act, Exchange Act or any other state securities or other “blue sky” laws of<br>any jurisdiction in which Registrable Securities are offered or any rule or regulation promulgated thereunder<br>applicable to the Company or its agents and relating to action or inaction required of the Company in<br>connection with such registration of the Registrable Securities (the matters in the foregoing clauses (i) and<br>(ii) being, collectively, “Violations”). The Company shall reimburse each Indemnified Person promptly as<br>such expenses are incurred and are due and payable, for any reasonable out-of-pocket legal fees or other<br>reasonable and documented expenses incurred by them in connection with investigating or defending any<br>such Claim. Notwithstanding anything to the contrary contained herein, the indemnification agreement<br>contained in this Section 6(a): (A) shall not apply to a Claim by an Indemnified Person arising out of or<br>based upon a Violation which occurs in reliance upon and in conformity with information furnished in<br>writing to the Company by the Investors or such Indemnified Person specifically for use in such<br>Registration Statement or prospectus and was reviewed and approved in writing by such Investor or such<br>Indemnified Person expressly for use in connection with the preparation of any Registration Statement, any<br>prospectus or any such amendment thereof or supplement thereto, if such in each case if the foregoing was<br>timely made available by the Company; (B) with respect to any superseded prospectus, shall not inure to<br>the benefit of any such Person from whom the Person asserting any such Claim purchased the Registrable<br>Securities that are the subject thereof (or to the benefit of any other Indemnified Person) if the untrue<br>statement or omission of material fact contained in the superseded prospectus was corrected in the revised<br>prospectus, as then amended or supplemented, and the Indemnified Person was promptly advised in writing<br>not to use the outdated, defective or incorrect prospectus prior to the use giving rise to a Violation; (C) shall<br>not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written<br>consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. Such<br>indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the
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10<br>US-DOCS\165131843.6<br>Indemnified Person and shall survive the transfer of the Registrable Securities by the Investor pursuant to<br>Section 8.<br>(b) In connection with the Initial Registration Statement, any New Registration<br>Statement or any prospectus, the Investors, severally and not jointly, agree to indemnify, hold harmless and<br>defend, the Company, each of its directors, each of its officers who signed the Initial Registration Statement<br>or signs any New Registration Statement, each Person, if any, who controls the Company within the<br>meaning of the Securities Act or the Exchange Act (each, an “Indemnified Party”), against any losses,<br>claims, damages, liabilities and expense (including reasonable attorney fees) resulting from any Violation,<br>in each case to the extent, and only to the extent, that such Violation occurs in reliance upon and in<br>conformity with information about an Investor furnished in writing by such Investor to the Company and<br>reviewed and approved in writing by such Investor or such Indemnified Person expressly for use in<br>connection with the preparation of the Registration Statement, any New Registration Statement, any<br>prospectus or any such amendment thereof or supplement thereto. In no event shall the liability of an<br>Investor be greater in amount than the dollar amount of the proceeds (net of all expense paid by such<br>Investor in connection with any claim relating to this Section 6 and the amount of any damages such<br>Investor has otherwise been required to pay by reason of such untrue statement or omission) received by<br>such Investor upon the sale of the Registrable Securities included in such Registration Statement giving rise<br>to such indemnification obligation. Such indemnity shall remain in full force and effect regardless of any<br>investigation made by or on behalf of such Indemnified Party and shall survive the transfer of the<br>Registrable Securities by any Investor pursuant to Section 8.<br>(c) Promptly after receipt by an Indemnified Person or Indemnified Party under this<br>Section 6 of notice of the commencement of any action or proceeding (including any governmental action<br>or proceeding) involving a Claim, such Indemnified Person or Indemnified Party shall, if a Claim in respect<br>thereof is to be made against any indemnifying party under this Section 6, deliver to the indemnifying party<br>a written notice of the commencement thereof, and the indemnifying party shall have the right to participate<br>in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly<br>noticed, to assume control of the defense thereof with counsel mutually satisfactory to the indemnifying<br>party and the Indemnified Person or the Indemnified Party, as the case may be, and upon such notice, the<br>indemnifying party shall not be liable to the Indemnified Person or the Indemnified Party for any legal or<br>other expenses subsequently incurred by the Indemnified Person or the Indemnified Party in connection<br>with the defense thereof; provided, however, that an Indemnified Person or Indemnified Party (together<br>with all other Indemnified Persons and Indemnified Parties that may be represented without conflict by one<br>counsel) shall have the right to retain its own counsel with the reasonable fees and expenses to be paid by<br>the indemnifying party, if, in the reasonable opinion of counsel retained by the indemnifying party, the<br>representation by such counsel of the Indemnified Person or Indemnified Party and the indemnifying party<br>would be inappropriate due to actual or potential differing interests between such Indemnified Person or<br>Indemnified Party and any other party represented by such counsel in such proceeding. The Indemnified<br>Party or Indemnified Person shall cooperate with the indemnifying party in connection with any negotiation<br>or defense of any such action or claim by the indemnifying party and shall furnish to the indemnifying party<br>all information reasonably available to the Indemnified Party or Indemnified Person which relates to such<br>action or claim. The indemnifying party shall keep the Indemnified Party or Indemnified Person fully<br>apprised as to the status of the defense or any settlement negotiations with respect thereto. No indemnifying<br>party shall be liable for any settlement of any action, claim or proceeding effected without its written<br>consent, provided, however, that the indemnifying party shall not unreasonably withhold, delay or condition<br>its consent. No indemnifying party shall, without the consent of the Indemnified Party or Indemnified<br>Person, consent to entry of any judgment or enter into any settlement or other compromise unless such<br>judgment or settlement (i) imposes no liability or obligation on, (ii) includes as an unconditional term<br>thereof the giving of a complete, explicit and unconditional release from the party bringing such
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11<br>US-DOCS\165131843.6<br>indemnified claims of all liability of the Indemnified Party or Indemnified Person in respect to or arising<br>out of such claim or litigation in favor of, and (iii) does not include any admission of fault, culpability,<br>wrongdoing, or wrongdoing or malfeasance by or on behalf of, the Indemnified Party or Indemnified<br>Person. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated<br>to all rights of the Indemnified Party or Indemnified Person with respect to all third parties, firms or<br>corporations relating to the matter for which indemnification has been made. The failure to deliver written<br>notice to the indemnifying party within a reasonable time of the commencement of any such action shall<br>not relieve such indemnifying party of any liability to the Indemnified Person or Indemnified Party under<br>this Section 6, except to the extent that the indemnifying party is prejudiced in its ability to defend such<br>action.<br>(d) The indemnification required by this Section 6 shall be made by periodic payments<br>of the amount thereof during the course of the investigation or defense, as and when bills are received or<br>Indemnified Damages are incurred. Any Person receiving a payment pursuant to this Section 6 which<br>person is later determined to not be entitled to such payment shall return such payment (including<br>reimbursement of expenses) to the person making it.<br>(e) The indemnity agreements contained herein shall be in addition to (i) any cause of<br>action or similar right of the Indemnified Party or Indemnified Person against the indemnifying party or<br>others, and (ii) any liabilities the indemnifying party may be subject to pursuant to the law.<br>7. CONTRIBUTION.<br>To the extent any indemnification by an indemnifying party is prohibited or limited by law,<br>the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it<br>would otherwise be liable under Section 6 to the fullest extent permitted by law; provided, however, that:<br>(i) no seller of Registrable Securities guilty of fraudulent misrepresentation (within the meaning of Section<br>11(f) of the Securities Act) shall be entitled to contribution from any seller of Registrable Securities who<br>was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities<br>shall be limited in amount to the net amount of proceeds (net of all expenses paid by such holder in<br>connection with any claim relating to this Section 7 and the amount of any damages such holder has<br>otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged<br>omission) received by such seller from the sale of such Registrable Securities giving rise to such<br>contribution obligation.<br>8. ASSIGNMENT OF REGISTRATION RIGHTS.<br>The Company shall not assign this Agreement or any rights or obligations hereunder<br>(whether by operation of law or otherwise) without the prior written consent of the Required Investors;<br>provided, however, that in any transaction, whether by merger, reorganization, restructuring, consolidation,<br>financing or otherwise, whereby the Company is a party and in which the Registrable Securities are<br>converted into the equity securities of another Person, from and after the effective time of such transaction,<br>such Person shall, by virtue of such transaction, be deemed to have assumed the obligations of the Company<br>hereunder, the term “Company” shall be deemed to refer to such Person and the term “Registrable<br>Securities” shall be deemed to include the securities received by the Investor in connection with such<br>transaction unless such securities are otherwise freely tradable by the Investor after giving effect to such<br>transaction, and the prior written consent of the Required Investors shall not be required for such<br>transaction.
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12<br>US-DOCS\165131843.6<br>An Investor may transfer or assign its rights hereunder, in whole or from time to time in<br>part, to one or more Persons in connection with the transfer of not fewer than 1,000,000 (subject to<br>appropriate adjustment in the event of any stock dividend, stock split, combination or other similar<br>recapitalization) Registrable Securities (including Registrable Securities issuable upon exercise of<br>Warrants) by such Investor to such Person, provided that such Investor complies with all laws applicable<br>thereto, and the provisions of the Purchase Agreement, and provides written notice of assignment to the<br>Company promptly after such assignment is effected, and such Person agrees in writing to be bound by all<br>of the provisions contained herein.<br>The provisions of this Agreement shall be binding upon and inure to the benefit of the<br>Investor and its successors and permitted assigns.<br>9. AMENDMENTS AND WAIVERS.<br>The provisions of this Agreement, including the provisions of this sentence, may be<br>amended, modified or supplemented, or waived only by a written instrument executed by (i) the Company<br>and (ii) the Required Investors, provided that (1) any party may give a waiver as to itself, (2) any<br>amendment, modification, supplement or waiver that disproportionately and adversely affects the rights<br>and obligations of any Investor relative to the comparable rights and obligations of the other Investors shall<br>require the prior written consent of such adversely affected Investor or each Investor, as applicable, and (3)<br>any amendments to Section 6 or to the definitions of “Filing Deadline,” “Effectiveness Deadline,” or<br>“Registration Period” shall require the written consent of each Investor. Notwithstanding the foregoing, a<br>waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to<br>the rights of one or more Investors and that does not adversely directly or indirectly affect the rights of<br>other Investors may be given by Investors holding all of the Registrable Securities to which such waiver or<br>consent relates.<br>10. MISCELLANEOUS.<br>(a) Notices. Any notices or other communications required or permitted to be given<br>hereunder shall be in writing and shall be deemed to be given (a) when delivered if personally delivered to<br>the party for whom it is intended, (b) when delivered, if sent by electronic mail during normal business<br>hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business<br>day, (c) three days after having been sent by certified or registered mail, return-receipt requested and<br>postage prepaid, or (d) one business day after deposit with a nationally recognized overnight courier, freight<br>prepaid, specifying next business day delivery, with written verification of receipt:<br>i. If to the Company, addressed as follows:<br>AEON Biopharma, Inc.<br>5 Park Plaza, Suite 1750<br>Irvine, CA 92614<br>Attention: Robert Bancroft, CEO and President<br>Email: rb@aeonbiopharma.com; aw@aeonbiopharma.com<br>with a copy (which shall not constitute notice):<br>Latham & Watkins LLP<br>650 Town Center Drive<br>20th Floor
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13<br>US-DOCS\165131843.6<br>Costa Mesa, California 92626<br>Attention: Drew Capurro<br>Email: drew.capurro@lw.com<br>ii. If to any Investor, at its e-mail address or address set forth on its signature<br>page to the Purchase Agreement or to such e-mail address, or address as subsequently modified by<br>written notice given in accordance with this Section 10.<br>Any Person may change the address to which notices and communications to it are to be addressed by<br>notification as provided for herein.<br>(b) Consent to Electronic Notice. Each Investor consents to the delivery of any<br>stockholder notice pursuant to the Delaware General Corporation Law (the “DGCL”), as amended or<br>superseded from time to time, by electronic mail pursuant to Section 232 of the DGCL (or any successor<br>thereto) at the e-mail address set forth below the Investor’s name on the signature page or Exhibit A, as<br>updated from time to time by notice to the Company. To the extent that any notice given by means of<br>electronic mail is returned or undeliverable for any reason, the foregoing consent shall be deemed to have<br>been revoked until a new or corrected e-mail address has been provided, and such attempted electronic<br>notice shall be ineffective and deemed to not have been given. Each party agrees to promptly notify the<br>other parties of any change in its e-mail address, and that failure to do so shall not affect the foregoing.<br>(c) Waiver. No waiver of any term, provision or condition of this Agreement, whether<br>by conduct or otherwise, in any one or more instances, shall be deemed to be, or be construed as, a further<br>or continuing waiver of any such term, provision or condition or as a waiver of any other term, provision<br>or condition of this Agreement.<br>(d) Governing Law. The provisions of Section 8.5 of the Purchase Agreement are<br>incorporated by reference herein mutatis mutandis.<br>(e) Headings. The titles, subtitles and headings in this Agreement are for convenience<br>of reference and shall not form part of, or affect the interpretation of, this Agreement.<br>(f) Counterparts. This Agreement may be executed in two or more identical<br>counterparts, all of which shall be considered one and the same agreement and shall become effective when<br>counterparts have been signed by each party and delivered to the other party; provided that a facsimile or<br>pdf signature including any electronic signatures complying with the U.S. federal ESIGN Act of 2000, e.g.,<br>www.docusign.com shall be considered due execution and shall be binding upon the signatory thereto with<br>the same force and effect as if the signature were an original, not a facsimile or pdf (or other electronic<br>reproduction of a) signature.<br>(g) Further Assurances. Each party shall do and perform, or cause to be done and<br>performed, all such further acts and things, and shall execute and deliver all such other agreements,<br>certificates, instruments and documents as the other party may reasonably request in order to carry out the<br>intent and accomplish the purposes of this Agreement and the consummation of the transactions<br>contemplated hereby.<br>(h) Contract Interpretation. This Agreement is the joint product of each Investor and<br>the Company and each provision hereof has been subject to the mutual consultation, negotiation and<br>agreement of such parties and shall not be construed for or against any party hereto.
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14<br>US-DOCS\165131843.6<br>(i) No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is<br>intended to confer on any Person other than the parties to this Agreement any rights, remedies, claims,<br>benefits, obligations or liabilities under or by reason of this Agreement, and no Person that is not a party to<br>this Agreement (including, without limitation, any partner, member, shareholder, director, officer,<br>employee or other beneficial owner of any party to this Agreement, in its own capacity as such or in bringing<br>a derivative action on behalf of a party to this Agreement) shall have any standing as a third party<br>beneficiary with respect to this Agreement or the transactions contemplated hereby.<br>(j) Severability. If any part or provision of this Agreement is held unenforceable or in<br>conflict with the applicable laws or regulations of any jurisdiction, the invalid or unenforceable part or<br>provisions shall be replaced with a provision which accomplishes, to the extent possible, the original<br>business purpose of such part or provision in a valid and enforceable manner, and the remainder of this<br>Agreement shall remain binding upon the parties hereto.<br>(k) Non-Recourse. Notwithstanding anything that may be expressed or implied in this<br>Agreement, the Company covenants, agrees and acknowledges that no recourse under this Agreement or<br>any documents or instruments delivered in connection with this Agreement shall be had against any current<br>or future director, officer, employee, stockholder, general or limited partner or member of the Investors or<br>of any affiliates or assignees thereof, whether by the enforcement of any assessment or by any legal or<br>equitable proceeding, or by virtue of any statute, regulation or other applicable law, it being expressly<br>agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise<br>be incurred by any current or future director, officer, employee, stockholder, general or limited partner or<br>member of the Investors or of any affiliates or assignees thereof, as such for any obligation of the Investors<br>under this Agreement or any documents or instruments delivered in connection with this Agreement for<br>any claim based on, in respect of or by reason of such obligations or their creation.<br>(l) Specific Performance. In addition to any and all other remedies that may be<br>available at law in the event of any breach of this Agreement, each Investor shall be entitled to specific<br>performance of the agreements and obligations of the Company hereunder and to such other injunction or<br>other equitable relief as may be granted by a court of competent jurisdiction.<br>(m) Cumulative Remedies. The remedies provided herein are cumulative and not<br>exclusive of any remedies provided by law.<br>[Signature Page Follows]
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1<br>US-DOCS\165131843.6<br>IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement<br>to be duly executed as of date first written above.<br>COMPANY:<br>AEON BIOPHARMA, INC.<br>By:<br>Name: Robert Bancroft<br>Title: CEO & President
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2<br>US-DOCS\165131843.6<br>IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement<br>to be duly executed as of date first written above.<br>INVESTOR:<br>[NAME]<br>By:<br>Name:<br>Title:
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Exhibit 10.3

1<br>BINDING TERM SHEET<br>This Binding Term Sheet will the basis of the key terms of the Exchange (as defined below) of the Notes<br>(as defined below) held by Daewoong Pharmaceutical Co., Ltd. (“Daewoong”) in AEON Biopharma, Inc.<br>(“AEON” or “Company” and together with Daewoong, the “Parties”).<br>TERM DESCRIPTION<br>Existing Notes: Senior Secured Convertible Note in the principal amount of five million<br>dollars ($5,000,000), dated as of March 24, 2024, by and between<br>Daewoong and AEON with a term of three (3) years.<br>Senior Secured Convertible Note in the principal amount of ten million<br>dollars ($10,000,000), dated as of April 12, 2024, by and between<br>Daewoong and AEON with a term of three (3) years.<br>PIPE: The private placement of AEON’s Class A common stock (the “Common<br>Stock”) or pre-funded warrants to purchase Common Stock (the “Pre-Funded Warrants”) currently contemplated by AEON, whereby the<br>Company anticipates raising $6M pursuant to a “Securities Purchase<br>Agreement” with investors, and which will include anti-dilution protections<br>relative to the Existing Notes.<br>PIPE Price: The most recent closing price of a share of Common Stock prior to the<br>execution of the Securities Purchase Agreement.<br>PIPE Shares: Each investor shall receive shares of Common Stock (or Pre-Funded<br>Warrants) equal to their PIPE investment divided by the PIPE Price.<br>Conversion Price: The higher of (i) the PIPE Price or (ii) one dollar ($1.00).<br>Anti-Dilution Rights &<br>Warrants:<br>Upon the exchange of the Existing Notes, each investor shall have the right<br>to receive an additional number of shares of Common Stock intended to<br>protect such investor’s pre-exchange ownership position, except that the<br>number of shares of Common Stock issued with respect to such anti-dilution right shall not exceed such investor’s number of PIPE Shares.<br>PIPE Common Warrants: Each investor shall receive a number of common warrants (the “Common<br>Warrants”) equal to such investor’s number of PIPE Shares. The Common<br>Warrants shall have an exercise price equal to the PIPE Price multiplied by<br>1.2 (a 20% premium) and shall only be exercisable for cash. The term of<br>the Common Warrants shall be five (5) years.<br>Daewoong Warrants Daewoong shall receive 8,000,000 warrants (the “Daewoong Warrants”).<br>The Daewoong Warrants shall have the same exercise price as the<br>Common Warrants, shall only be exercisable for cash and shall have a five<br>(5) year term.<br>Residual Amount: One million five hundred thousand dollars ($1,500,000).<br>Exchange of Notes: Daewoong has agreed to exchange the Existing Notes for:<br>(1) a new Senior Secured Convertible Note in a principal amount equal to<br>the Residual Amount and a maturity date of April 12, 2030 (the “New<br>Note”);<br>(2) shares of Common Stock or Pre-Funded Warrants equal to result of (i)
2<br>TERM DESCRIPTION<br>the current amount due on the Existing Notes (principal plus accrued<br>interest as calculated in accordance with the Existing Notes) less the<br>Residual Amount, being (ii) divided by the Conversion Price and (iii) then<br>multiplied by 1.3 (as provided in Section 4.1 of the Notes) (“New Shares”);<br>and<br>(3) the Daewoong Warrants.<br>Definitive Agreements: The Company and Daewoong shall enter into a customary exchange<br>agreement relating to the exchange of the Existing Notes for the New Note<br>and New Shares, and appropriate ancillary agreements for the New Note<br>similar to those entered into in connection with the Existing Notes.<br>Note Definitive Documents<br>Target Execution Date:<br>November 25, 2025.<br>Shareholder Approval: Consummation of the Exchange will be subject to AEON shareholder<br>approval.<br>Pre-Funded Warrant<br>Terms:<br>For each share of Common Stock to be received in the Exchange that would<br>cause Daewoong’s ownership to exceed 49.99% (the “Ownership Limit”)<br>of the Company’s outstanding voting shares, Daewoong shall receive one<br>pre-funded warrant. The basic terms of the Pre-Funded Warrants shall<br>include:<br> Exercise Price: $0.0001 per share<br> Term: no expiration date<br> Exercisability: Immediately and at any time so long as such exercise<br>shall not cause Daewoong to exceed the Ownership Limit or<br>otherwise violate any applicable securities laws<br> Transferability: transferable subject to applicable securities laws<br> Adjustments: exercise price and number of shares may be adjusted<br>for stock splits, stock dividends, recapitalizations or other similar<br>transactions<br>Confidentiality: Except as required by law (including AEON’s reporting obligations with the<br>Securities and Exchange Commission), this term sheet is confidential and<br>may not be disclosed by either Party (other than to its managers, members,<br>partners, officers, directors, employees, and advisers) to any third party or<br>used to facilitate negotiations with any third party without the other party’s<br>prior approval. The foregoing is not intended to apply to the PIPE investors.<br>Customary Terms: The definitive documentation to effectuate the Exchange will contain such<br>additional and supplementary provisions, such as customary<br>representations and warranties.<br>Governing Law: This term sheet shall be governed by the laws of the State of Delaware.<br>IN WITNESS WHEREOF, the Parties have caused this Term Sheet to be executed by their respective<br>duly authorized representatives
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3<br>DAEWOONG PHARMACEUTICAL CO., LTD AEON BIOPHARMA, INC.<br>/s/ Seongsee Park /s/ Robert Bancroft<br><br>Name: Seongsee Park Name: Robert Bancroft<br>Title: CEO & President Title: CEO & President<br>Date: November 12, 2025 Date: November 12, 2025
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Exhibit 4.1

US-DOCS\165131923.3<br>THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE<br>EXERCISE OF THIS WARRANT (THE “SECURITIES”) HAVE NOT BEEN<br>REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE<br>“SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED<br>STATES. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY<br>NOT BE SOLD, TRANSFERRED OR ASSIGNED UNLESS (I) SUCH SECURITIES<br>HAVE BEEN REGISTERED FOR SALE PURSUANT TO THE SECURITIES ACT, (II)<br>SUCH SECURITIES MAY BE SOLD PURSUANT TO RULE 144 UNDER THE<br>SECURITIES ACT, (III) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL<br>REASONABLY SATISFACTORY TO IT THAT SUCH TRANSFER MAY LAWFULLY<br>BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT, OR (IV) THE<br>SECURITIES ARE TRANSFERRED WITHOUT CONSIDERATION TO AN AFFILIATE<br>OF SUCH HOLDER OR A CUSTODIAL NOMINEE (WHICH FOR THE AVOIDANCE<br>OF DOUBT SHALL REQUIRE NEITHER CONSENT NOR THE DELIVERY OF AN<br>OPINION).<br>FORM OF PRE-FUNDED WARRANT TO PURCHASE COMMON STOCK<br>Number of Shares: [•]<br>(subject to adjustment)<br>Warrant No. [•] Original Issue Date: [•], 2025<br>AEON Biopharma, Inc., a Delaware corporation (the “Company”), hereby certifies that,<br>for good and valuable consideration, the receipt and sufficiency of which are hereby<br>acknowledged, [•] or its registered assigns (the “Holder”), is entitled, subject to the terms set forth<br>below, to purchase from the Company up to a total of [•] shares of Class A common stock, $0.0001<br>par value per share (the “Common Stock”), of the Company (each such share, a “Warrant Share”<br>and all such shares, the “Warrant Shares”) at an exercise price per share equal to $0.0001 (the<br>“Exercise Price”), in each case as adjusted from time to time as provided in Section 9, upon<br>surrender of this Pre-Funded Warrant to Purchase Common Stock (including any Warrants to<br>Purchase Common Stock issued in exchange, transfer or replacement hereof, the “Warrant”) at<br>any time and from time to time on or after the date hereof (the “Original Issue Date”), subject to<br>the following terms and conditions:<br>1. Definitions. For purposes of this Warrant, the following terms shall have the<br>following meanings:<br>“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly<br>through one or more intermediates, controls, is controlled by or is under common control with<br>such Person.<br>“Attribution Parties” means, collectively, the following Persons and entities: (i) any direct<br>or indirect Affiliates of the Holder, (ii) any investment vehicle, including, any funds, feeder funds or<br>managed accounts, currently, or from time to time after the date hereof, directly or indirectly managed<br>or advised by the Holder’s investment manager or any of its Affiliates or principals, (iii) any Person
US-DOCS\165131923.3<br>acting or who could be deemed to be acting as a Group together with the Holder or any Attribution<br>Parties and (iv) any other Persons whose beneficial ownership of the Company’s Common Stock<br>would or could be aggregated with the Holder’s and/or any other Attribution Parties for purposes of<br>Section 13(d) or Section 16 of the Exchange Act. For clarity, the purpose of the foregoing is to subject<br>collectively the Holder and all other Attribution Parties to the Maximum Percentage.<br>“Closing Sale Price” means, for any security as of any date, the last trade price for such<br>security on the Principal Trading Market for such security, as reported by Bloomberg Financial<br>Markets, or, if such Principal Trading Market begins to operate on an extended hours basis and does<br>not designate the last trade price, then the last trade price of such security prior to 4:00 P.M., New<br>York City time, as reported by Bloomberg Financial Markets, or if the foregoing do not apply, the<br>last trade price of such security in the over-the-counter market on the electronic bulletin board for<br>such security as reported by Bloomberg Financial Markets. If the Closing Sale Price cannot be<br>calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price<br>of such security on such date shall be the fair market value as mutually determined by the Company<br>and the Holder. If the Company and the Holder are unable to agree upon the fair market value of<br>such security, then the Board of Directors of the Company shall use its good faith judgment to<br>determine the fair market value. The Board of Directors’ determination shall be binding upon all<br>parties absent demonstrable error. All such determinations shall be appropriately adjusted for any<br>stock dividend, stock split, stock combination or other similar transaction during the applicable<br>calculation period.<br>“Commission” means the U.S. Securities and Exchange Commission.<br>“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and all of<br>the rules and regulations promulgated thereunder.<br>“Group” shall have the meaning ascribed to it in Section 13(d) of the Exchange Act, and<br>all related rules, regulations and jurisprudence.<br>“Person” means an individual, partnership, corporation, limited liability company,<br>business trust, joint stock company, trust, incorporated or unincorporated association, joint<br>venture, government (or an agency or subdivision thereof) or any other entity or organization.<br>“Principal Trading Market” means the national securities exchange or other trading<br>market on which the Common Stock is primarily listed on and quoted for trading, which, as of the<br>Original Issue Date, shall be the NYSE American.<br>“Securities Act” means the U.S. Securities Act of 1933, as amended, and all of the rules<br>and regulations promulgated thereunder.<br>“Standard Settlement Period” means the standard settlement period, expressed in a<br>number of Trading Days, for the Principal Trading Market with respect to the Common Stock that<br>is in effect on the date of delivery of an applicable Exercise Notice, which as of the Original Issue<br>Date was “T+1.”
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US-DOCS\165131923.3<br>“Trading Day” means any weekday on which the Principal Trading Market is normally<br>open for trading.<br>“Trading Market” means any of the following markets or exchanges on which the<br>Common Stock is listed or quoted for trading on the date in question: the NYSE American, the<br>Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New<br>York Stock Exchange (or any successors to any of the foregoing).<br>“Transfer Agent” means Continental Stock Transfer & Trust Co., the Company’s transfer<br>agent and registrar for the Common Stock, and any successor appointed in such capacity.<br>“VWAP” means, for any date, the price determined by the first of the following clauses<br>that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily<br>volume weighted average price of the Common Stock for such date (or the nearest preceding date)<br>on the Trading Market on which the Common Stock is then listed or quoted as reported by<br>Bloomberg (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York<br>City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price<br>of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as<br>applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX<br>and if prices for the Common Stock are then reported on The Pink Open Market (or a similar<br>organization or agency succeeding to its functions of reporting prices), the most recent bid price<br>per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a<br>share of Common Stock as determined by an independent appraiser selected in good faith by the<br>Company and the Holder, the fees and expenses of which shall be paid by the Company.<br>2. Issuance of Securities; Registration of Warrants. The Company shall register<br>ownership of this Warrant, upon records to be maintained by the Company for that purpose (the<br>“Warrant Register”), in the name of the record Holder (which shall include the initial Holder or,<br>as the case may be, any assignee to which this Warrant is permissibly assigned hereunder) from<br>time to time. The Company may deem and treat the registered Holder of this Warrant as the<br>absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and<br>for all other purposes, absent actual notice to the contrary.<br>3. Registration of Transfers. This Warrant and all rights hereunder (including,<br>without limitation, any registration rights) are transferable, in whole or in part, upon surrender of<br>this Warrant at the principal office of the Company or its designated agent, together with a written<br>assignment of this Warrant substantially in the form attached hereto duly executed by the Holder<br>or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of<br>such transfer. Subject to compliance with all applicable securities laws, the Company shall, or<br>will cause its Transfer Agent to, register the transfer of all or any portion of this Warrant in the<br>Warrant Register, upon surrender of this Warrant, and payment for all applicable transfer taxes (if<br>any). Upon any such registration or transfer, a new warrant to purchase Common Stock in<br>substantially the form of this Warrant (any such new warrant, a “New Warrant”) evidencing the<br>portion of this Warrant so transferred shall be issued to the transferee, and a New Warrant<br>evidencing the remaining portion of this Warrant not so transferred, if any, shall be issued to the<br>transferring Holder. The acceptance of the New Warrant by the transferee thereof shall be deemed<br>the acceptance by such transferee of all of the rights and obligations in respect of the New Warrant
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US-DOCS\165131923.3<br>that the Holder has in respect of this Warrant. The Company shall, or will cause its Transfer Agent<br>to, prepare, issue and deliver at the Company’s own expense any New Warrant under this Section<br>3. Until due presentment for registration of transfer, the Company may treat the registered Holder<br>hereof as the owner and holder for all purposes, and the Company shall not be affected by any<br>notice to the contrary.<br>4. Exercise of Warrants.<br>(a) All or any part of this Warrant shall be exercisable by the registered Holder<br>in any manner permitted by this Warrant (including Section 11) at any time and from time to time<br>on or after the Original Issue Date, and such rights shall not expire until exercised in full.<br>(b) The Holder may exercise this Warrant by delivering to the Company (i) an<br>exercise notice, in the form attached as Schedule 1 hereto (the “Exercise Notice”), completed and<br>duly signed, and (ii) payment of the Exercise Price for the number of Warrant Shares as to which<br>this Warrant is being exercised (which may take the form of a “cashless exercise” if so indicated<br>in the Exercise Notice pursuant to Section 10 below), and the date on which the last of such items<br>is delivered to the Company (as determined in accordance with the notice provisions hereof) is an<br>“Exercise Date.” The Holder shall not be required to deliver the original Warrant in order to effect<br>an exercise hereunder. Execution and delivery of the Exercise Notice shall have the same effect as<br>cancellation of the original Warrant and issuance of a New Warrant evidencing the right to<br>purchase the remaining number of Warrant Shares, if any.<br>(c) The Holder and any assignee, by acceptance of this Warrant, acknowledge<br>and agree that, by reason of the provisions of this section, following the purchase of a portion of<br>the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at<br>any given time may be less than the amount stated on the face hereof.<br>5. Delivery of Warrant Shares.<br>(a) Upon exercise of this Warrant, the Company shall promptly (but in no event<br>later than the earliest of (i) two (2) Trading Days after delivery to the Company of the Exercise<br>Notice, (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company and<br>(iii) the number of Trading Days comprising the Standard Settlement Period following the Exercise<br>Date (such date, the “Warrant Share Delivery Date”)) cause the Transfer Agent to credit such<br>aggregate number of shares of Common Stock specified by the Holder in the Exercise Notice and to<br>which the Holder is entitled pursuant to such exercise (the “Exercise Shares”) to (i) the Holder’s or<br>its designee’s balance account with The Depository Trust Company (“DTC”) through its Deposit<br>Withdrawal At Custodian system or (ii) in book-entry form via a direct registration system (“DRS”)<br>maintained by or on behalf of the Transfer Agent, in each case, so long as either (A) there is an<br>effective registration statement permitting the issuance of the Warrant Shares to or the resale of such<br>Warrant Shares by the Holder or (B) the Exercise Shares are eligible for resale by the Holder without<br>volume or manner-of-sale restrictions pursuant to Rule 144 promulgated under the Securities Act<br>(assuming cashless exercise of this Warrant). If (A) and (B) above are not true, the Company shall<br>cause the Transfer Agent to either (i) record the Exercise Shares in the name of the Holder or its<br>designee on the certificates reflecting the Exercise Shares with an appropriate legend regarding<br>restriction on transferability, which shall be issued and dispatched by overnight courier to the address
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US-DOCS\165131923.3<br>as specified in the Exercise Notice, and on the Company’s share register or (ii) issue such Exercise<br>Shares in the name of the Holder or its designee in restricted book-entry form in the Company’s<br>share register. The Holder, or any Person so designated by the Holder to receive Warrant Shares,<br>shall be deemed to have become the holder of record of such Warrant Shares as of the Exercise Date,<br>irrespective of the date such Warrant Shares are credited to the Holder’s DTC account, the date of<br>the book entry positions or the date of delivery of the certificates evidencing such Exercise Shares,<br>as the case may be. If the Company fails to instruct the Transfer Agent to deliver to the Holder or its<br>designee the Exercise Shares in the manner required pursuant to this Section 5(a) by the Warrant<br>Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not<br>as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the<br>Common Stock on the date of the applicable Exercise Notice), $10 per Trading Day (increasing to<br>$20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each<br>Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or the<br>Holder rescinds such exercise. The Company agrees to maintain a Transfer Agent that is a participant<br>in the FAST program so long as this Warrant remains outstanding and exercisable.<br>(b) In addition to any other rights available to the Holder, if the Company fails<br>to cause the Transfer Agent to deliver to the Holder or its designee Exercise Shares in the manner<br>required pursuant to Section 5(a) within the Standard Settlement Period following the Exercise Date<br>(other than a failure caused by incorrect or incomplete information provided by the Holder to the<br>Company) and the Holder or the Holder’s broker on its behalf purchases (in an open market<br>transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder<br>of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”) but<br>did not receive within the Standard Settlement Period, then the Company shall, within two (2)<br>Trading Days after the Holder’s request and in the Holder’s sole discretion, promptly honor its<br>obligation to deliver to the Holder or its designee the Exercise Shares pursuant to Section 5(a) and<br>pay cash to the Holder in an amount equal to the excess (if any) of the Holder’s total purchase price<br>(including brokerage commissions, if any) for the shares of Common Stock so purchased in the<br>Buy-In, less the product of (A) the number of shares of Common Stock purchased in the Buy-In,<br>times (B) the Closing Sale Price of a share of Common Stock on the Exercise Date. The Holder<br>shall provide the Company written notice promptly after the occurrence of a Buy-In, indicating the<br>amounts payable to the Holder in respect of the Buy-In together with applicable confirmations and<br>other evidence reasonably requested by the Company. If the Company fails to cause the Transfer<br>Agent to transmit the Exercise Shares pursuant to Section 5(a) by the Warrant Share Delivery Date,<br>the Holder shall have the right to rescind such exercise in addition to all other rights and remedies<br>at law or in equity.<br>(c) To the extent permitted by law and subject to Section 5(b), the Company’s<br>obligations to issue and deliver Warrant Shares in accordance with and subject to the terms hereof<br>(including the limitations set forth in Section 11 below) are absolute and unconditional, irrespective<br>of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any<br>provision hereof, the recovery of any judgment against any Person or any action to enforce the same,<br>or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach<br>by the Holder or any other Person of any obligation to the Company or any violation or alleged<br>violation of law by the Holder or any other Person, and irrespective of any other circumstance that<br>might otherwise limit such obligation of the Company to the Holder in connection with the<br>issuance of Warrant Shares. Subject to Section 5(b), nothing herein shall limit the Holder’s right
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US-DOCS\165131923.3<br>to pursue any other remedies available to it hereunder, at law or in equity including, without<br>limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s<br>failure to timely deliver Exercise Shares; provided, however, that the Holder shall not be entitled<br>to both (i) require the Company to reinstate the portion of the Warrant and equivalent number of<br>Warrant Shares for which such exercise was not timely honored and (ii) receive the number of<br>shares of Common Stock that would have been issued if the Company had timely complied with<br>its delivery requirements under Section 5(a).<br>6. Charges, Taxes and Expenses. Issuance and delivery of Exercise Shares shall be<br>made without charge to the Holder for any issue or transfer tax, transfer agent fee or other<br>incidental tax or expense (excluding any applicable stamp duties) in respect of the issuance of such<br>shares, all of which taxes and expenses shall be paid by the Company; provided, however, that the<br>Company shall not be required to pay any tax that may be payable in respect of any transfer<br>involved in the registration of any Warrant Shares or the Warrants in a name other than that of the<br>Holder or an Affiliate thereof. The Holder shall be responsible for all other tax liability that may<br>arise as a result of holding or transferring this Warrant or receiving Warrant Shares upon exercise<br>hereof.<br>7. Replacement of Warrant. If this Warrant is mutilated, lost, stolen or destroyed,<br>the Company shall issue or cause to be issued in exchange and substitution for and upon<br>cancellation hereof, or in lieu of and substitution for this Warrant, a New Warrant, but only upon<br>receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction (in<br>such case) and, in each case, a customary and reasonable contractual indemnity, if requested by<br>the Company. If a New Warrant is requested as a result of a mutilation of this Warrant, then the<br>Holder shall deliver such mutilated Warrant to the Company as a condition precedent to the<br>Company’s obligation to issue the New Warrant.<br>8. Reservation of Warrant Shares. The Company covenants that it will, at all times<br>while this Warrant is outstanding, reserve and keep available out of the aggregate of its authorized<br>but unissued and otherwise unreserved Common Stock, solely for the purpose of enabling it to issue<br>Warrant Shares upon exercise of this Warrant as herein provided, the number of Warrant Shares that<br>are initially issuable and deliverable upon the exercise of this entire Warrant, free from preemptive<br>rights or any other contingent purchase rights of persons other than the Holder (taking into account<br>the adjustments and restrictions of Section 9). The Company covenants that all Warrant Shares so<br>issuable and deliverable shall, upon issuance and the payment of the applicable Exercise Price in<br>accordance with the terms hereof, be duly and validly authorized, issued and fully paid and non-assessable. The Company will take all such action as may be reasonably necessary to assure that<br>such shares of Common Stock may be issued as provided herein without violation of any applicable<br>law or regulation, or of any requirements of any securities exchange or automated quotation system<br>upon which the Common Stock may be listed. The Company further covenants that it will not,<br>without the prior written consent of the Holder, take any actions to increase the par value of the<br>Common Stock at any time while this Warrant is outstanding.<br>9. Certain Adjustments. The Exercise Price and number of Warrant Shares issuable<br>upon exercise of this Warrant (the “Number of Warrant Shares”) are subject to adjustment from<br>time to time as set forth in this Section 9.
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US-DOCS\165131923.3<br>(a) Stock Dividends and Splits. If the Company, at any time while this Warrant<br>is outstanding, (i) pays a stock dividend on its Common Stock or otherwise makes a distribution on<br>any class of capital stock issued and outstanding on the Original Issue Date and in accordance with<br>the terms of such stock on the Original Issue Date or as amended, that is payable in shares of<br>Common Stock, (ii) subdivides its outstanding shares of Common Stock into a larger number of<br>shares of Common Stock, (iii) combines (including by way of reverse stock split) its outstanding<br>shares of Common Stock into a smaller number of shares of Common Stock or (iv) issues by<br>reclassification of shares of capital stock any additional shares of Common Stock of the Company,<br>then in each such case the Number of Warrant Sharesshall be multiplied by a fraction, the numerator<br>of which shall be the number of shares of Common Stock outstanding immediately after such event<br>and the denominator of which shall be the number of shares of Common Stock outstanding<br>immediately before such event. Any adjustment made pursuant to clause (i) of this paragraph shall<br>become effective immediately after the record date for the determination of stockholders entitled to<br>receive such dividend or distribution, provided, however, that if such record date shall have been<br>fixed and such dividend is not fully paid on the date fixed therefor, the Number of Warrant Shares<br>shall be recomputed accordingly as of the close of business on such record date and thereafter the<br>Number of Warrant Shares shall be adjusted pursuant to this paragraph as of the time of actual<br>payment of such dividends. Any adjustment pursuant to clause (ii), (iii) or (iv) of this paragraph<br>shall become effective immediately after the effective date of such subdivision, combination or<br>issuance.<br>(b) Pro Rata Distributions. If, on or after the Original Issue Date, the Company<br>shall declare or make any dividend or other pro rata distribution of its assets (or rights to acquire<br>its assets) to holders of shares of Common Stock, by way of return of capital or otherwise<br>(including, without limitation, any distribution of cash, stock or other securities, property, options,<br>evidence of indebtedness or any other assets by way of a dividend, spin off, reclassification,<br>corporate rearrangement, scheme of arrangement or other similar transaction, but, for the<br>avoidance of doubt, excluding any distribution of shares of Common Stock subject to Section 9(a),<br>any distribution of Purchase Rights (as defined below) subject to Section 9(c) and any Fundamental<br>Transaction (as defined below) subject to Section 9(d)) (a “Distribution”) then, in each such case,<br>the Holder shall be entitled to participate in such Distribution to the same extent that the Holder<br>would have participated therein if the Holder had held the number of shares of Common Stock<br>acquirable upon complete exercise of this Warrant (without regard to any limitations or restrictions<br>on exercise of this Warrant, including without limitation, the Maximum Percentage (as defined<br>below)) immediately before the date on which a record is taken for such Distribution, or, if no such<br>record is taken, the date as of which the record holders of shares of Common Stock are to be<br>determined for the participation in such Distribution; provided, that to the extent that the Holder’s<br>right to participate in any such Distribution would result in the Holder and the other Attribution<br>Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in<br>such Distribution to such extent (and shall not be entitled to beneficial ownership of such shares of<br>Common Stock as a result of such Distribution to such extent) and the portion of such Distribution<br>shall be held in abeyance for the benefit of the Holder until such time or times as its right thereto<br>would not result in the Holder and the other Attribution Parties exceeding the Maximum<br>Percentage, at which time or times the Holder shall be granted such Distribution (and any<br>Distributions declared or made on such initial Distribution or on any subsequent Distribution held<br>similarly in abeyance) to the same extent as if there had been no such limitation.
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US-DOCS\165131923.3<br>(c) Purchase Rights. If at any time on or after the Original Issue Date, the<br>Company grants, issues or sells any Options, Convertible Securities or rights to purchase stock,<br>warrants, securities or other property, in each case pro rata to the record holders of any class of<br>Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms<br>applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have<br>acquired if the Holder had held the number of shares of Common Stock acquirable upon complete<br>exercise of this Warrant (without regard to any limitations or restrictions on exercise of this Warrant,<br>including without limitation, the Maximum Percentage) immediately before the date on which a<br>record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken,<br>the date as of which the record holders of Common Stock are to be determined for the grant, issuance<br>or sale of such Purchase Rights; provided, that to the extent that the Holder’s right to participate in<br>any such Purchase Right would result in the Holder and the other Attribution Parties exceeding the<br>Maximum Percentage, then the Holder shall not be entitled to participate in such Purchase Right to<br>such extent (and shall not be entitled to beneficial ownership of such Common Stock as a result of<br>such Purchase Right (and beneficial ownership) to such extent) and at the Holder’s election, in its<br>sole discretion, either (1)such Purchase Right to such extent shall be held in abeyance for the benefit<br>of the Holder until such time or times as its right thereto would not result in the Holder and the other<br>Attribution Parties exceeding the Maximum Percentage, at which time or times the Holder shall be<br>granted such right (and any Purchase Right granted, issued or sold on such initial Purchase Right or<br>on any subsequent Purchase Right to be held similarly in abeyance) to the same extent as if there<br>had been no such limitation or (2) the Company shall offer the Holder the right upon exercise of<br>such Purchase Right to acquire a security (e.g. a pre-funded warrant) that would not result in the<br>Holder and the other Attribution Parties exceeding the Maximum Percentage but will otherwise to<br>the extent possible have economic and other rights, preferences and privileges substantially<br>consistent and on par with the securities or other property issuable upon exercise of the originally<br>offered Purchase Rights. As used in this Section 9(c), (i) “Options” means any rights, warrants or<br>options to subscribe for or purchase shares of Common Stock or Convertible Securities and (ii)<br>“Convertible Securities” mean any stock or securities (other than Options) directly or indirectly<br>convertible into or exercisable or exchangeable for shares of Common Stock.<br>(d) Fundamental Transactions. If, at any time while this Warrant is outstanding<br>(i) the Company effects any merger or consolidation of the Company with or into another Person,<br>in which the Company is not the surviving entity or in which the stockholders of the Company<br>immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50%<br>of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the<br>Company effects any sale to another Person of all or substantially all of its assets in one or a series<br>of related transactions, (iii) pursuant to any tender offer or exchange offer (whether by the Company<br>or another Person), holders of capital stock tender shares representing more than 50% of the voting<br>power of the capital stock of the Company and the Company or such other Person, as applicable,<br>accepts such tender for payment, (iv) the Company consummates a stock purchase agreement or<br>other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than<br>50% of the voting power of the capital stock of the Company (except for any such transaction in<br>which the stockholders of the Company immediately prior to such transaction maintain, in<br>substantially the same proportions, the voting power of such Person immediately after the<br>transaction) or (v) the Company effects any reclassification of the Common Stock or any<br>compulsory share exchange pursuant to which the Common Stock is effectively converted into or
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US-DOCS\165131923.3<br>exchanged for other securities, cash or property (other than as a result of a subdivision or<br>combination of shares of Common Stock covered by Section 9(a) above) (in any such case, a<br>“Fundamental Transaction”), then following such Fundamental Transaction the Holder shall have<br>the right to receive, upon exercise of this Warrant, the same amount and kind of securities, cash or<br>property as it would have been entitled to receive upon the occurrence of such Fundamental<br>Transaction if it had been, immediately prior to such Fundamental Transaction, the holder of the<br>number of Warrant Shares then issuable upon exercise in full of this Warrant (including any<br>Distributions or Purchase Rights then held in abeyance pursuant to Sections 9(b) or 9(c) above)<br>without regard to any limitations on exercise contained herein (the “Alternate Consideration”).<br>The Company shall not effect any Fundamental Transaction in which the Company is not the<br>surviving entity or the Alternate Consideration includes securities of another Person unless (i) the<br>Alternate Consideration is solely cash and the Company provides for the simultaneous “cashless<br>exercise” of this Warrant pursuant to Section 10 below or (ii) prior to or simultaneously with the<br>consummation thereof, any successor to the Company, surviving entity or other Person (including<br>any purchaser of assets of the Company) shall assume the obligation to deliver to the Holder such<br>Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled<br>to receive, and the other obligations under this Warrant. The provisions of this paragraph (d) shall<br>similarly apply to subsequent transactions analogous to a Fundamental Transaction type.<br>(e) Number of Warrant Shares. Simultaneously with any adjustment to the<br>Number of Warrant Shares pursuant to Section 9, the Exercise Price shall be increased or decreased<br>proportionately, so that after such adjustment the aggregate Exercise Price payable hereunder for<br>the increased or decreased Number of Warrant Shares shall be the same as the aggregate Exercise<br>Price in effect immediately prior to such adjustment. Notwithstanding the foregoing, in no event<br>may the Exercise Price be adjusted below the par value of the Common Stock then in effect.<br>(f) Calculations. All calculations under this Section 9 shall be made to the<br>nearest one-tenth of one cent or the nearest share, as applicable.<br>(g) Notice of Adjustments. Upon the occurrence of each adjustment pursuant to<br>this Section 9, the Company at its expense will, at the written request of the Holder, promptly<br>compute such adjustment, in good faith, in accordance with the terms of this Warrant and prepare<br>a certificate setting forth such adjustment, including a statement of the adjusted Exercise Price and<br>adjusted number or type of Warrant Shares or other securities issuable upon exercise of this<br>Warrant (as applicable), describing the transactions giving rise to such adjustments and showing<br>in detail the facts upon which such adjustment is based. Upon written request, the Company will<br>promptly deliver a copy of each such certificate to the Holder and to the Company’s transfer agent.<br>(h) Notice of Corporate Events. If, while this Warrant is outstanding, the<br>Company (i) declares a dividend or any other distribution of cash, securities or other property in<br>respect of its Common Stock, including, without limitation, any granting of rights or warrants to<br>subscribe for or purchase any capital stock of the Company or any subsidiary, (ii) authorizes or<br>approves, enters into any agreement contemplating or solicits stockholder approval for any<br>Fundamental Transaction or (iii) authorizes the voluntary dissolution, liquidation or winding up<br>of the affairs of the Company, then the Company shall deliver to the Holder a notice of such<br>transaction at least ten (10) days prior to the applicable record or effective date on which a Person<br>would need to hold Common Stock in order to participate in or vote with respect to such
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US-DOCS\165131923.3<br>transaction; provided, however, that the failure to deliver such notice or any defect therein shall<br>not affect the validity of the corporate action required to be described in such notice. In addition,<br>if while this Warrant is outstanding, the Company authorizes or approves, enters into any<br>agreement contemplating or solicits stockholder approval for any Fundamental Transaction<br>contemplated by Section 9(d), other than a Fundamental Transaction under clause (iii) of Section<br>9(d), the Company shall deliver to the Holder a notice of such Fundamental Transaction at least<br>thirty (30) days prior to the date such Fundamental Transaction is consummated. Holder agrees<br>to maintain any information disclosed pursuant to this Section 9(h) in confidence until such<br>information is publicly available, and shall comply with applicable law with respect to trading in<br>the Company’s securities following receipt of any such information.<br>10. Payment of Exercise Price. Notwithstanding anything contained herein to the<br>contrary, the Holder may, in its sole discretion, satisfy its obligation to pay the Exercise Price<br>through a “cashless exercise”, in which event the Company shall issue to the Holder the number<br>of Warrant Shares in an exchange of securities effected pursuant to Section 3(a)(9) of the Securities<br>Act, determined as follows:<br>X = Y [(A-B)/A]<br>where:<br>“X” equals the number of Warrant Shares to be issued to the Holder;<br>“Y” equals the total number of Warrant Shares with respect to which this Warrant<br>is then being exercised;<br>“A” equals the Closing Sale Price of the shares of Common Stock (as reported by<br>Bloomberg Financial Market) as of the Trading Day on the date immediately preceding<br>the Exercise Date); and<br>“B” equals the Exercise Price then in effect for the applicable Warrant Shares at<br>the time of such exercise.<br>For purposes of Rule 144 promulgated under the Securities Act, it is intended, understood and<br>acknowledged that the Warrant Shares issued in a “cashless exercise” transaction shall be deemed<br>to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed<br>to have commenced, on the Original Issue Date (provided that the Commission continues to take<br>the position that such treatment is proper at the time of such exercise). If the Warrant Shares are<br>issued in such a cashless exercise, the Company acknowledges and agrees that, in accordance with<br>Section 3(a)(9) of the Securities Act, the Exercise Shares issued in such exercise shall take on the<br>registered characteristics of the Warrants being exercised and may be tacked on to the holding<br>period of the Warrants being exercised. Except as set forth in Section 5(b) (Buy-in Remedy) and<br>Section 12 (No Fractional Shares), in no event will the exercise of this Warrant be settled in cash.<br>11. Limitations on Exercise.<br>(a) Beneficial Ownership Limitation.
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US-DOCS\165131923.3<br>(i) Notwithstanding anything to the contrary contained herein, the Company<br>shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not<br>have the right to exercise any portion of the Warrant, and any such exercise shall be null and void<br>ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or<br>following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would<br>beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules<br>promulgated thereunder, in excess of 9.99% (the “Maximum Percentage”) of the Common Stock<br>that would be issued and outstanding following such exercise. For purposes of calculating beneficial<br>ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate<br>number of shares of Common Stock held and/or beneficially owned by the Holder together with the<br>Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially<br>owned by the Holder together with the Attribution Parties plus the number of shares of Common<br>Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being<br>made but shall exclude the number of shares of Common Stock which would be issuable upon (i)<br>exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the<br>Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any<br>other securities of the Company held and/or beneficially owned by such Holder or any Attribution<br>Party (including, without limitation, any convertible notes, convertible stock or warrants) that are<br>subject to a limitation on conversion or exercise analogous to the limitation contained herein. For<br>purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall,<br>except as set forth in the immediately preceding sentence, be calculated and determined in<br>accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For<br>purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a<br>Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected<br>in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other<br>public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent<br>public announcement by the Company or (3) any other notice by the Company or the Company’s<br>transfer agent setting forth the number of shares of Common Stock outstanding (such issued and<br>outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon<br>the written or oral request of the Holder, the Company shall within one business day confirm orally<br>and in writing or by electronic mail to the Holder the number of shares of Common Stock then<br>outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that<br>it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire<br>through the exercise of derivative securities and any limitations on exercise or conversion analogous<br>to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise<br>Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a<br>time when the actual number of outstanding shares of Common Stock is less than the Reported<br>Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of<br>shares of Common Stock then outstanding and, to the extent that such Exercise Notice would<br>otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as<br>determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must<br>notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such<br>Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”)<br>and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price<br>paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of<br>Common Stock shall be determined after giving effect to the conversion or exercise of securities of
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US-DOCS\165131923.3<br>the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of<br>which the Reported Outstanding Share Number was reported. In the event that the issuance of<br>Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the<br>Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum<br>Percentage of the number of outstanding shares of Common Stock (as determined under Section<br>13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with<br>the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the<br>“Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder<br>and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As<br>soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and<br>void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess<br>Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase<br>or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified<br>in such notice; provided that any increase in the Maximum Percentage will not be effective until<br>the 61st day after such notice is delivered to the Company and shall not negatively affect any<br>partial exercise effected prior to such change.<br>(ii) This Section 11 shall not restrict the number of shares of Common Stock<br>which a Holder or the Attribution Parties may receive or beneficially own in order to determine<br>the amount of securities or other consideration that such Holder or the Attribution Parties may<br>receive in the event of a Fundamental Transaction as contemplated in Section 9(d) of this Warrant.<br>For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant<br>in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder<br>or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange<br>Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules<br>promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant<br>pursuant to this paragraph shall have any effect on the applicability of the provisions of this<br>paragraph with respect to any subsequent determination of exercisability. The provisions of this<br>paragraph shall be construed and implemented in a manner otherwise than in strict conformity<br>with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of<br>this paragraph which may be defective or inconsistent with the intended beneficial ownership<br>limitation contained in this Section 11 or to make changes or supplements necessary or desirable<br>to properly give effect to such limitation. The limitation contained in this paragraph may not be<br>waived and shall apply to a successor holder of this Warrant.<br>(b) [Principal Trading Market Regulation. Notwithstanding anything to<br>the contrary contained herein, the Company shall not effect the exercise of any portion of this<br>Warrant, and the Holder of this Warrant shall not have the right to exercise any portion of the<br>Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not<br>been made, if the issuance of such shares of Common Stock would exceed the aggregate number<br>of shares of Common Stock which the Company may issue without breaching the Company’s<br>obligations under the rules or regulations of the Principal Trading Market. Such limitation shall<br>not apply in the event that the Company obtains the approval of its stockholders as required by the
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US-DOCS\165131923.3<br>applicable rules of the Principal Trading Market for issuances of shares of Common Stock in<br>excess of such amount.]<br>1<br><br>12. No Fractional Shares. No fractional Warrant Shares will be issued in connection<br>with any exercise of this Warrant. In lieu of any fractional shares that would otherwise be issuable,<br>the number of Warrant Shares to be issued shall be rounded down to the next whole number and<br>the Company shall pay the Holder in cash the fair market value (based on the Closing Sale Price)<br>for any such fractional shares.<br>13. Notices. Any and all notices or other communications or deliveries hereunder<br>(including, without limitation, any Exercise Notice) shall be in writing and shall be deemed given<br>and effective on the earliest of (i) the date of transmission, if such notice or communication is<br>delivered confirmed e-mail at the e-mail address specified in the books and records of the Transfer<br>Agent prior to 5:30 P.M., New York City time, on a Trading Day, (ii) the next Trading Day after the<br>date of transmission, if such notice or communication is delivered via confirmed e-mail at the e-mail<br>address specified in the books and records of the Transfer Agent on a day that is not a Trading Day<br>or later than 5:30 P.M., New York City time, on any Trading Day, (iii) the Trading Day following<br>the date of mailing, if sent by nationally recognized overnight courier service specifying next<br>business day delivery, or (iv) upon actual receipt by the Person to whom such notice is required to<br>be given, if by hand delivery.<br>14. Warrant Agent. The Company shall initially serve as warrant agent under this<br>Warrant. Upon 30 days’ notice to the Holder, the Company may appoint a new warrant agent. Any<br>corporation into which the Company or any new warrant agent may be merged or any corporation<br>resulting from any consolidation to which the Company or any new warrant agent shall be a party<br>or any corporation to which the Company or any new warrant agent transfers substantially all of its<br>corporate trust or shareholders services business shall be a successor warrant agent under this<br>Warrant without any further act. Any such successor warrant agent shall promptly cause notice of<br>its succession as warrant agent to be mailed (by first class mail, postage prepaid) to the Holder at<br>the Holder’s last address as shown on the Warrant Register.<br>15. Miscellaneous.<br>(a) No Rights as a Stockholder. Except as otherwise set forth in this Warrant, the<br>Holder, solely in such Person’s capacity as a holder of this Warrant, shall not be entitled to vote or<br>receive dividends or be deemed the holder of share capital of the Company for any purpose, nor<br>shall anything contained in this Warrant be construed to confer upon the Holder, solely in such<br>Person’s capacity as the Holder of this Warrant, any of the rights of a stockholder of the Company<br>or any right to vote, give or withhold consent to any corporate action (whether any reorganization,<br>issue of stock, reclassification of stock, consolidation, merger, amalgamation, conveyance or<br>otherwise), receive notice of meetings, receive dividends or subscription rights, or otherwise, prior<br>to the issuance to the Holder of the Warrant Shares which such Person is then entitled to receive<br>upon the due exercise of this Warrant. In addition, nothing contained in this Warrant shall be<br>construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this<br>1 NTD: To include for pre-funded warrants issued at first closing that would exceed 20% rule.
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US-DOCS\165131923.3<br>Warrant or otherwise) or as a stockholder of the Company, whether such liabilities are asserted by<br>the Company or by creditors of the Company.<br>(b) Further Assurances. Except and to the extent as waived or consented to by<br>the Holder, the Company shall not by any action, including, without limitation, amending its<br>certificate or articles of incorporation or through any reorganization, transfer of assets,<br>consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid<br>or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all<br>times in good faith assist in the carrying out of all such terms and in the taking of all such actions<br>as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant<br>against impairment. Without limiting the generality of the foregoing, the Company will (a) not<br>increase the par value of any Warrant Shares above the amount payable therefor upon such<br>exercise immediately prior to such increase in par value, (b) take all such action as may be<br>necessary or appropriate in order that the Company may validly and legally issue fully paid and<br>non-assessable Warrant Shares upon the exercise of this Warrant, and (c) use commercially<br>reasonable efforts to obtain all such authorizations, exemptions or consents from any public<br>regulatory body having jurisdiction thereof as may be necessary to enable the Company to perform<br>its obligations under this Warrant. Before taking any action which would result in an adjustment<br>in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price,<br>the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as<br>may be necessary from any public regulatory body or bodies having jurisdiction thereof.<br>(c) Successors and Assigns. Subject to compliance with applicable securities<br>laws, this Warrant may be assigned by the Holder. This Warrant may not be assigned by the<br>Company without the written consent of the Holder, except to a successor in the event of a<br>Fundamental Transaction. This Warrant shall be binding on and inure to the benefit of the<br>Company and the Holder and their respective successors and assigns. Subject to the preceding<br>sentence, nothing in this Warrant shall be construed to give to any Person other than the Company<br>and the Holder any legal or equitable right, remedy or cause of action under this Warrant.<br>(d) Amendment and Waiver. This Warrant may be amended only in writing<br>signed by the Company and the Holder, or their successors and assigns. Except as otherwise<br>provided herein, the Company may take any action herein prohibited, or omit to perform any act<br>herein required to be performed by it, only if the Company has obtained the written consent of the<br>Holder.<br>(e) Acceptance. Receipt of this Warrant by the Holder shall constitute<br>acceptance of and agreement to all of the terms and conditions contained herein.<br>(f) Governing Law; Jurisdiction. ALL QUESTIONS CONCERNING THE<br>CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS<br>WARRANT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN<br>ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD<br>TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF. EACH OF THE COMPANY<br>AND THE HOLDER HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE<br>JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW<br>YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE
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US-DOCS\165131923.3<br>HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY TRANSACTION<br>CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO<br>THE ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS), AND HEREBY<br>IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR<br>PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE<br>JURISDICTION OF ANY SUCH COURT. EACH OF THE COMPANY AND THE HOLDER<br>HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS<br>TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY<br>MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT<br>DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PERSON AT THE ADDRESS IN<br>EFFECT FOR NOTICES TO IT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE<br>GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING<br>CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO<br>SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. EACH OF THE COMPANY<br>AND THE HOLDER HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY.<br>(g) Headings. The headings herein are for convenience only, do not constitute<br>a part of this Warrant and shall not be deemed to limit or affect any of the provisions hereof.<br>(h) Severability. If any part or provision of this Warrant is held unenforceable<br>or in conflict with the applicable laws or regulations of any jurisdiction, the invalid or<br>unenforceable part or provisions shall be replaced with a provision which accomplishes, to the<br>extent possible, the original business purpose of such part or provision in a valid and<br>enforceable manner, and the remainder of this Warrant shall remain binding upon the parties<br>hereto.<br>[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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US-DOCS\165131923.3<br>IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by<br>its authorized officer as of the date first indicated above.<br>AEON BIOPHARMA, INC.<br>By:<br>Name:<br>Title:
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US-DOCS\165131923.3<br>SCHEDULE 1<br>FORM OF EXERCISE NOTICE<br>[To be executed by the Holder to purchase shares of Common Stock under the Warrant]<br>Ladies and Gentlemen:<br>(1) The undersigned is the Holder of Warrant No. __ (the “Warrant”) issued by AEON Biopharma, Inc., a Delaware<br>corporation (the “Company”). Capitalized terms used herein and not otherwise defined herein have the respective<br>meanings set forth in the Warrant.<br>(2) The undersigned hereby exercises its right to purchase _____ Warrant Shares pursuant to the Warrant.<br>(3) The Holder intends that payment of the Exercise Price shall be made as (check one):<br>☐ Cash Exercise<br>☐ “Cashless Exercise” under Section 10 of the Warrant<br>(4) If the Holder has elected a Cash Exercise, the Holder shall pay the sum of $ _____ in immediately available<br>funds to the Company in accordance with the terms of the Warrant.<br>(5) Pursuant to this Exercise Notice, the Company shall deliver to the Holder Warrant Shares determined in<br>accordance with the terms of the Warrant. The Warrant Shares shall be delivered (check one):<br>☐ to the following DWAC Account Number: _______________________________<br>☐ in book-entry form via a direct registration system<br>☐ by physical delivery of a certificate to: ______________________________________________________<br>_______________________________________________________<br>☐ in restricted book-entry form in the Company’s share register<br>(6) By its delivery of this Exercise Notice, the undersigned represents and warrants to the Company that in giving<br>effect to the exercise evidenced hereby the Holder (i) the Holder is an “accredited investor” as defined in Regulation<br>D promulgated under the Securities Act of 1933, as amended and (ii) will not beneficially own in excess of the<br>number of shares of Common Stock (as determined in accordance with Section 13(d) of the Securities Exchange Act<br>of 1934, as amended) permitted to be owned under Section 11(a) of the Warrant to which this notice relates.<br>Dated:<br>Name of Holder:<br>By:<br>Name:<br>Title:<br>(Signature must conform in all respects to name of Holder as specified on the face of the Warrant)
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Exhibit 4.2

US-DOCS\165270300.9<br>THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE<br>EXERCISE OF THIS WARRANT (THE “SECURITIES”) HAVE NOT BEEN<br>REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE<br>“SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED<br>STATES. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY<br>NOT BE SOLD, TRANSFERRED OR ASSIGNED UNLESS (I) SUCH SECURITIES<br>HAVE BEEN REGISTERED FOR SALE PURSUANT TO THE SECURITIES ACT, (II)<br>SUCH SECURITIES MAY BE SOLD PURSUANT TO RULE 144 UNDER THE<br>SECURITIES ACT, (III) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL<br>REASONABLY SATISFACTORY TO IT THAT SUCH TRANSFER MAY LAWFULLY<br>BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT, OR (IV) THE<br>SECURITIES ARE TRANSFERRED WITHOUT CONSIDERATION TO AN AFFILIATE<br>OF SUCH HOLDER OR A CUSTODIAL NOMINEE (WHICH FOR THE AVOIDANCE<br>OF DOUBT SHALL REQUIRE NEITHER CONSENT NOR THE DELIVERY OF AN<br>OPINION).<br>FORM OF WARRANT TO PURCHASE COMMON STOCK<br>Number of Shares: [•]<br>1<br>(subject to adjustment)<br>Warrant No. [•] Original Issue Date: [•], 2025<br>AEON Biopharma, Inc., a Delaware corporation (the “Company”), hereby certifies that,<br>for good and valuable consideration, the receipt and sufficiency of which are hereby<br>acknowledged, [•] or its registered assigns (the “Holder”), is entitled, subject to the terms set forth<br>below, to purchase from the Company up to a total of [•] shares of Class A common stock, $0.0001<br>par value per share (the “Common Stock”), of the Company (each such share, a “Warrant Share”<br>and all such shares, the “Warrant Shares”) at an exercise price per share equal to $[  ] (the<br>“Exercise Price”) 2<br>, in each case as adjusted from time to time as provided in Section 9, upon<br>surrender of this Warrant to Purchase Common Stock (including any Warrants to Purchase<br>Common Stock issued in exchange, transfer or replacement hereof, the “Warrant”) at any time<br>and from time to time on or after the Original Issue Date (the “Initial Exercise Date”) and on or<br>prior to 5:00 p.m. (New York City time) on [•] of the [•] (the “Termination Date”)3<br>but not<br>thereafter.<br>1. Definitions. For purposes of this Warrant, the following terms shall have the<br>following meanings:<br>“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly through<br>one or more intermediates, controls, is controlled by or is under common control with such Person.<br>1 Equal to number of shares or pre-funded warrants purchased under SPA, excluding any True-Up Shares.<br>2 120% of purchase price for stock under SPA.<br>3 5 year anniversary of the Second Closing.
US-DOCS\165270300.9<br>2<br>“Attribution Parties” means, collectively, the following Persons and entities: (i) any direct<br>or indirect Affiliates of the Holder, (ii) any investment vehicle, including, any funds, feeder funds or<br>managed accounts, currently, or from time to time after the date hereof, directly or indirectly managed<br>or advised by the Holder’s investment manager or any of its Affiliates or principals, (iii) any Person<br>acting or who could be deemed to be acting as a Group together with the Holder or any Attribution<br>Parties and (iv) any other Persons whose beneficial ownership of the Company’s Common Stock<br>would or could be aggregated with the Holder’s and/or any other Attribution Parties for purposes of<br>Section 13(d) or Section 16 of the Exchange Act. For clarity, the purpose of the foregoing is to subject<br>collectively the Holder and all other Attribution Parties to the Maximum Percentage.<br>“Closing Sale Price” means, for any security as of any date, the last trade price for such<br>security on the Principal Trading Market for such security, as reported by Bloomberg Financial<br>Markets, or, if such Principal Trading Market begins to operate on an extended hours basis and does<br>not designate the last trade price, then the last trade price of such security prior to 4:00 P.M., New<br>York City time, as reported by Bloomberg Financial Markets, or if the foregoing do not apply, the<br>last trade price of such security in the over-the-counter market on the electronic bulletin board for<br>such security as reported by Bloomberg Financial Markets. If the Closing Sale Price cannot be<br>calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price<br>of such security on such date shall be the fair market value as mutually determined by the Company<br>and the Holder. If the Company and the Holder are unable to agree upon the fair market value of<br>such security, then the Board of Directors of the Company shall use its good faith judgment to<br>determine the fair market value. The Board of Directors’ determination shall be binding upon all<br>parties absent demonstrable error. All such determinations shall be appropriately adjusted for any<br>stock dividend, stock split, stock combination or other similar transaction during the applicable<br>calculation period.<br>“Commission” means the U.S. Securities and Exchange Commission.<br>“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and all of<br>the rules and regulations promulgated thereunder.<br>“Group” shall have the meaning ascribed to it in Section 13(d) of the Exchange Act, and<br>all related rules, regulations and jurisprudence.<br>“Person” means an individual, partnership, corporation, limited liability company,<br>business trust, joint stock company, trust, incorporated or unincorporated association, joint<br>venture, government (or an agency or subdivision thereof) or any other entity or organization.<br>“Principal Trading Market” means the national securities exchange or other trading<br>market on which the Common Stock is primarily listed on and quoted for trading, which, as of the<br>Original Issue Date, shall be the NYSE American.<br>“Securities Act” means the U.S. Securities Act of 1933, as amended, and all of the rules<br>and regulations promulgated thereunder.<br>“Standard Settlement Period” means the standard settlement period, expressed in a<br>number of Trading Days, for the Principal Trading Market with respect to the Common Stock that
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US-DOCS\165270300.9<br>3<br>is in effect on the date of delivery of an applicable Exercise Notice, which as of the Original Issue<br>Date was “T+1.”<br>“Trading Day” means any weekday on which the Principal Trading Market is normally<br>open for trading.<br>“Trading Market” means any of the following markets or exchanges on which the<br>Common Stock is listed or quoted for trading on the date in question: the NYSE American, the<br>Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New<br>York Stock Exchange (or any successors to any of the foregoing).<br>“Transfer Agent” means Continental Stock Transfer & Trust Co., the Company’s transfer<br>agent and registrar for the Common Stock, and any successor appointed in such capacity.<br>“VWAP” means, for any date, the price determined by the first of the following clauses<br>that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily<br>volume weighted average price of the Common Stock for such date (or the nearest preceding date)<br>on the Trading Market on which the Common Stock is then listed or quoted as reported by<br>Bloomberg (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York<br>City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price<br>of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as<br>applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX<br>and if prices for the Common Stock are then reported on The Pink Open Market (or a similar<br>organization or agency succeeding to its functions of reporting prices), the most recent bid price<br>per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a<br>share of Common Stock as determined by an independent appraiser selected in good faith by the<br>Company and the Holder, the fees and expenses of which shall be paid by the Company.<br>2. Issuance of Securities; Registration of Warrants. The Company shall register<br>ownership of this Warrant, upon records to be maintained by the Company for that purpose (the<br>“Warrant Register”), in the name of the record Holder (which shall include the initial Holder or,<br>as the case may be, any assignee to which this Warrant is permissibly assigned hereunder) from<br>time to time. The Company may deem and treat the registered Holder of this Warrant as the<br>absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and<br>for all other purposes, absent actual notice to the contrary.<br>3. Registration of Transfers. This Warrant and all rights hereunder (including,<br>without limitation, any registration rights) are transferable, in whole or in part, upon surrender of<br>this Warrant at the principal office of the Company or its designated agent, together with a written<br>assignment of this Warrant substantially in the form attached hereto duly executed by the Holder<br>or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of<br>such transfer. Subject to compliance with all applicable securities laws, the Company shall, or<br>will cause its Transfer Agent to, register the transfer of all or any portion of this Warrant in the<br>Warrant Register, upon surrender of this Warrant, and payment for all applicable transfer taxes (if<br>any). Upon any such registration or transfer, a new warrant to purchase Common Stock in<br>substantially the form of this Warrant (any such new warrant, a “New Warrant”) evidencing the<br>portion of this Warrant so transferred shall be issued to the transferee, and a New Warrant
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US-DOCS\165270300.9<br>4<br>evidencing the remaining portion of this Warrant not so transferred, if any, shall be issued to the<br>transferring Holder. The acceptance of the New Warrant by the transferee thereof shall be deemed<br>the acceptance by such transferee of all of the rights and obligations in respect of the New Warrant<br>that the Holder has in respect of this Warrant. The Company shall, or will cause its Transfer Agent<br>to, prepare, issue and deliver at the Company’s own expense any New Warrant under this Section<br>3. Until due presentment for registration of transfer, the Company may treat the registered Holder<br>hereof as the owner and holder for all purposes, and the Company shall not be affected by any<br>notice to the contrary.<br>4. Exercise of Warrants.<br>(a) All or any part of this Warrant shall be exercisable by the registered Holder<br>in any manner permitted by this Warrant (including Section 11) at any time and from time to time<br>on or after the Initial Exercise Date and on or before the Termination Date.<br>(b) The Holder may exercise this Warrant by delivering to the Company (i) an<br>exercise notice, in the form attached as Schedule 1 hereto (the “Exercise Notice”), completed and<br>duly signed, and (ii) payment of the Exercise Price for the number of Warrant Shares as to which<br>this Warrant is being exercised, and the date on which the last of such items is delivered to the<br>Company (as determined in accordance with the notice provisions hereof) is an “Exercise Date.”<br>The Holder shall not be required to deliver the original Warrant in order to effect an exercise<br>hereunder. Execution and delivery of the Exercise Notice shall have the same effect as cancellation<br>of the original Warrant and issuance of a New Warrant evidencing the right to purchase the<br>remaining number of Warrant Shares, if any. The Holder and the Company shall maintain records<br>showing the number of Warrant Shares purchased and the date of such purchases. The Company<br>shall deliver any objection to any Exercise Notice within two (2) Trading Days of receipt of such<br>notice.<br>(c) The Holder and any assignee, by acceptance of this Warrant, acknowledge<br>and agree that, by reason of the provisions of this section, following the purchase of a portion of<br>the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at<br>any given time may be less than the amount stated on the face hereof.<br>(d) Notwithstanding anything to the contrary contained herein, if the Holder<br>would be prohibited from exercising this Warrant in whole or in part pursuant to the beneficial<br>ownership limitation set forth in Section 11, then, in lieu of such exercise, the Holder may elect,<br>by written notice to the Company, to receive, upon payment of the aggregate Exercise Price<br>otherwise due in respect of the portion of this Warrant that would exceed such limitation, a pre-funded warrant (each, a “Pre-Funded Warrant”) in substantially the form attached hereto as<br>Exhibit A exercisable for the number of shares of Common Stock that would otherwise be issuable<br>upon such exercise.<br>5. Delivery of Warrant Shares.<br>(a) Upon exercise of this Warrant, the Company shall promptly (but in no event<br>later than the earliest of (i) two (2) Trading Days after delivery to the Company of the Exercise<br>Notice, (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company and
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US-DOCS\165270300.9<br>5<br>(iii) the number of Trading Days comprising the Standard Settlement Period following the Exercise<br>Date (such date, the “Warrant Share Delivery Date”)) cause the Transfer Agent to credit such<br>aggregate number of shares of Common Stock specified by the Holder in the Exercise Notice and to<br>which the Holder is entitled pursuant to such exercise (the “Exercise Shares”) to (i) the Holder’s or<br>its designee’s balance account with The Depository Trust Company (“DTC”) through its Deposit<br>Withdrawal At Custodian system or (ii) in book-entry form via a direct registration system (“DRS”)<br>maintained by or on behalf of the Transfer Agent, in each case, so long as either (A) there is an<br>effective registration statement permitting the issuance of the Warrant Shares to or the resale of such<br>Warrant Shares by the Holder or (B) the Exercise Shares are eligible for resale by the Holder without<br>volume or manner-of-sale restrictions pursuant to Rule 144 promulgated under the Securities Act<br>(assuming cashless exercise of this Warrant). If (A) and (B) above are not true, the Company shall<br>cause the Transfer Agent to either (i) record the Exercise Shares in the name of the Holder or its<br>designee on the certificates reflecting the Exercise Shares with an appropriate legend regarding<br>restriction on transferability, which shall be issued and dispatched by overnight courier to the address<br>as specified in the Exercise Notice, and on the Company’s share register or (ii) issue such Exercise<br>Shares in the name of the Holder or its designee in restricted book-entry form in the Company’s<br>share register. The Holder, or any Person so designated by the Holder to receive Warrant Shares,<br>shall be deemed to have become the holder of record of such Warrant Shares as of the Exercise Date,<br>irrespective of the date such Warrant Shares are credited to the Holder’s DTC account, the date of<br>the book entry positions or the date of delivery of the certificates evidencing such Exercise Shares,<br>as the case may be. If the Company fails to instruct the Transfer Agent to deliver to the Holder or its<br>designee the Exercise Shares in the manner required pursuant to this Section 5(a) by the Warrant<br>Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not<br>as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the<br>Common Stock on the date of the applicable Exercise Notice), $10 per Trading Day (increasing to<br>$20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each<br>Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or the<br>Holder rescinds such exercise. The Company agrees to maintain a Transfer Agent that is a participant<br>in the FAST program so long as this Warrant remains outstanding and exercisable.<br>(b) In addition to any other rights available to the Holder, if the Company fails<br>to cause the Transfer Agent to deliver to the Holder or its designee Exercise Shares in the manner<br>required pursuant to Section 5(a) within the Standard Settlement Period following the Exercise Date<br>(other than a failure caused by incorrect or incomplete information provided by the Holder to the<br>Company) and the Holder or the Holder’s broker on its behalf purchases (in an open market<br>transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder<br>of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”) but<br>did not receive within the Standard Settlement Period, then the Company shall, within two (2)<br>Trading Days after the Holder’s request and in the Holder’s sole discretion, promptly honor its<br>obligation to deliver to the Holder or its designee the Exercise Shares pursuant to Section 5(a) and<br>pay cash to the Holder in an amount equal to the excess (if any) of the Holder’s total purchase price<br>(including brokerage commissions, if any) for the shares of Common Stock so purchased in the<br>Buy-In, less the product of (A) the number of shares of Common Stock purchased in the Buy-In,<br>times (B) the Closing Sale Price of a share of Common Stock on the Exercise Date. The Holder<br>shall provide the Company written notice promptly after the occurrence of a Buy-In, indicating the<br>amounts payable to the Holder in respect of the Buy-In together with applicable confirmations and<br>other evidence reasonably requested by the Company. If the Company fails to cause the Transfer
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US-DOCS\165270300.9<br>6<br>Agent to transmit the Exercise Shares pursuant to Section 5(a) by the Warrant Share Delivery Date,<br>the Holder shall have the right to rescind such exercise in addition to all other rights and remedies<br>at law or in equity.<br>(c) To the extent permitted by law and subject to Section 5(b), the Company’s<br>obligations to issue and deliver Warrant Shares in accordance with and subject to the terms hereof<br>(including the limitations set forth in Section 11 below) are absolute and unconditional, irrespective<br>of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any<br>provision hereof, the recovery of any judgment against any Person or any action to enforce the same,<br>or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach<br>by the Holder or any other Person of any obligation to the Company or any violation or alleged<br>violation of law by the Holder or any other Person, and irrespective of any other circumstance that<br>might otherwise limit such obligation of the Company to the Holder in connection with the<br>issuance of Warrant Shares. Subject to Section 5(b), nothing herein shall limit the Holder’s right<br>to pursue any other remedies available to it hereunder, at law or in equity including, without<br>limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s<br>failure to timely deliver Exercise Shares; provided, however, that the Holder shall not be entitled<br>to both (i) require the Company to reinstate the portion of the Warrant and equivalent number of<br>Warrant Shares for which such exercise was not timely honored and (ii) receive the number of<br>shares of Common Stock that would have been issued if the Company had timely complied with<br>its delivery requirements under Section 5(a).<br>6. Charges, Taxes and Expenses. Issuance and delivery of Exercise Shares shall be<br>made without charge to the Holder for any issue or transfer tax, transfer agent fee or other<br>incidental tax or expense (excluding any applicable stamp duties) in respect of the issuance of such<br>shares, all of which taxes and expenses shall be paid by the Company; provided, however, that the<br>Company shall not be required to pay any tax that may be payable in respect of any transfer<br>involved in the registration of any Warrant Shares or the Warrants in a name other than that of the<br>Holder or an Affiliate thereof. The Holder shall be responsible for all other tax liability that may<br>arise as a result of holding or transferring this Warrant or receiving Warrant Shares upon exercise<br>hereof.<br>7. Replacement of Warrant. If this Warrant is mutilated, lost, stolen or destroyed,<br>the Company shall issue or cause to be issued in exchange and substitution for and upon<br>cancellation hereof, or in lieu of and substitution for this Warrant, a New Warrant, but only upon<br>receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction (in<br>such case) and, in each case, a customary and reasonable contractual indemnity, if requested by<br>the Company. If a New Warrant is requested as a result of a mutilation of this Warrant, then the<br>Holder shall deliver such mutilated Warrant to the Company as a condition precedent to the<br>Company’s obligation to issue the New Warrant.<br>8. Reservation of Warrant Shares. The Company covenants that it will, at all times<br>while this Warrant is outstanding, reserve and keep available out of the aggregate of its authorized<br>but unissued and otherwise unreserved Common Stock, solely for the purpose of enabling it to issue<br>Warrant Shares upon exercise of this Warrant as herein provided, the number of Warrant Shares that<br>are initially issuable and deliverable upon the exercise of this entire Warrant, free from preemptive<br>rights or any other contingent purchase rights of persons other than the Holder (taking into account
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US-DOCS\165270300.9<br>7<br>the adjustments and restrictions of Section 9). The Company covenants that all Warrant Shares so<br>issuable and deliverable shall, upon issuance and the payment of the applicable Exercise Price in<br>accordance with the terms hereof, be duly and validly authorized, issued and fully paid and non-assessable. The Company will take all such action as may be reasonably necessary to assure that<br>such shares of Common Stock may be issued as provided herein without violation of any applicable<br>law or regulation, or of any requirements of any securities exchange or automated quotation system<br>upon which the Common Stock may be listed. The Company further covenants that it will not,<br>without the prior written consent of the Holder, take any actions to increase the par value of the<br>Common Stock at any time while this Warrant is outstanding.<br>9. Certain Adjustments. The Exercise Price and number of Warrant Shares issuable<br>upon exercise of this Warrant (the “Number of Warrant Shares”) are subject to adjustment from<br>time to time as set forth in this Section 9.<br>(a) Stock Dividends and Splits. If the Company, at any time while this Warrant<br>is outstanding, (i) pays a stock dividend on its Common Stock or otherwise makes a distribution on<br>any class of capital stock issued and outstanding on the Original Issue Date and in accordance with<br>the terms of such stock on the Original Issue Date or as amended, that is payable in shares of<br>Common Stock, (ii) subdivides its outstanding shares of Common Stock into a larger number of<br>shares of Common Stock, (iii) combines (including by way of reverse stock split) its outstanding<br>shares of Common Stock into a smaller number of shares of Common Stock or (iv) issues by<br>reclassification of shares of capital stock any additional shares of Common Stock of the Company,<br>then in each such case the Number of Warrant Sharesshall be multiplied by a fraction, the numerator<br>of which shall be the number of shares of Common Stock outstanding immediately after such event<br>and the denominator of which shall be the number of shares of Common Stock outstanding<br>immediately before such event. Any adjustment made pursuant to clause (i) of this paragraph shall<br>become effective immediately after the record date for the determination of stockholders entitled to<br>receive such dividend or distribution, provided, however, that if such record date shall have been<br>fixed and such dividend is not fully paid on the date fixed therefor, the Number of Warrant Shares<br>shall be recomputed accordingly as of the close of business on such record date and thereafter the<br>Number of Warrant Shares shall be adjusted pursuant to this paragraph as of the time of actual<br>payment of such dividends. Any adjustment pursuant to clause (ii), (iii) or (iv) of this paragraph<br>shall become effective immediately after the effective date of such subdivision, combination or<br>issuance.<br>(b) Pro Rata Distributions. If, on or after the Original Issue Date, the Company<br>shall declare or make any dividend or other pro rata distribution of its assets (or rights to acquire<br>its assets) to holders of shares of Common Stock, by way of return of capital or otherwise<br>(including, without limitation, any distribution of cash, stock or other securities, property, options,<br>evidence of indebtedness or any other assets by way of a dividend, spin off, reclassification,<br>corporate rearrangement, scheme of arrangement or other similar transaction, but, for the<br>avoidance of doubt, excluding any distribution of shares of Common Stock subject to Section 9(a),<br>any distribution of Purchase Rights (as defined below) subject to Section 9(c) and any Fundamental<br>Transaction (as defined below) subject to Section 9(d)) (a “Distribution”) then, in each such case,<br>the Holder shall be entitled to participate in such Distribution to the same extent that the Holder<br>would have participated therein if the Holder had held the number of shares of Common Stock<br>acquirable upon complete exercise of this Warrant (without regard to any limitations or restrictions
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US-DOCS\165270300.9<br>8<br>on exercise of this Warrant, including without limitation, the Maximum Percentage (as defined<br>below)) immediately before the date on which a record is taken for such Distribution, or, if no such<br>record is taken, the date as of which the record holders of shares of Common Stock are to be<br>determined for the participation in such Distribution; provided, that to the extent that the Holder’s<br>right to participate in any such Distribution would result in the Holder and the other Attribution<br>Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in<br>such Distribution to such extent (and shall not be entitled to beneficial ownership of such shares of<br>Common Stock as a result of such Distribution to such extent) and the portion of such Distribution<br>shall be held in abeyance for the benefit of the Holder until such time or times as its right thereto<br>would not result in the Holder and the other Attribution Parties exceeding the Maximum<br>Percentage, at which time or times the Holder shall be granted such Distribution (and any<br>Distributions declared or made on such initial Distribution or on any subsequent Distribution held<br>similarly in abeyance) to the same extent as if there had been no such limitation.<br>(c) Purchase Rights. If at any time on or after the Original Issue Date, the<br>Company grants, issues or sells any Options, Convertible Securities or rights to purchase stock,<br>warrants, securities or other property, in each case pro rata to the record holders of any class of<br>Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms<br>applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have<br>acquired if the Holder had held the number of shares of Common Stock acquirable upon complete<br>exercise of this Warrant (without regard to any limitations or restrictions on exercise of this Warrant,<br>including without limitation, the Maximum Percentage) immediately before the date on which a<br>record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken,<br>the date as of which the record holders of Common Stock are to be determined for the grant, issuance<br>or sale of such Purchase Rights; provided, that to the extent that the Holder’s right to participate in<br>any such Purchase Right would result in the Holder and the other Attribution Parties exceeding the<br>Maximum Percentage, then the Holder shall not be entitled to participate in such Purchase Right to<br>such extent (and shall not be entitled to beneficial ownership of such Common Stock as a result of<br>such Purchase Right (and beneficial ownership) to such extent) and at the Holder’s election, in its<br>sole discretion, either (1)such Purchase Right to such extent shall be held in abeyance for the benefit<br>of the Holder until such time or times as its right thereto would not result in the Holder and the other<br>Attribution Parties exceeding the Maximum Percentage, at which time or times the Holder shall be<br>granted such right (and any Purchase Right granted, issued or sold on such initial Purchase Right or<br>on any subsequent Purchase Right to be held similarly in abeyance) to the same extent as if there<br>had been no such limitation or (2) the Company shall offer the Holder the right upon exercise of<br>such Purchase Right to acquire a security (e.g. a pre-funded warrant) that would not result in the<br>Holder and the other Attribution Parties exceeding the Maximum Percentage but will otherwise to<br>the extent possible have economic and other rights, preferences and privileges substantially<br>consistent and on par with the securities or other property issuable upon exercise of the originally<br>offered Purchase Rights. As used in this Section 9(c), (i) “Options” means any rights, warrants or<br>options to subscribe for or purchase shares of Common Stock or Convertible Securities and (ii)<br>“Convertible Securities” mean any stock or securities (other than Options) directly or indirectly<br>convertible into or exercisable or exchangeable for shares of Common Stock.<br>(d) Fundamental Transactions. If, at any time while this Warrant is outstanding<br>(i) the Company effects any merger or consolidation of the Company with or into another Person,<br>in which the Company is not the surviving entity or in which the stockholders of the Company
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US-DOCS\165270300.9<br>9<br>immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50%<br>of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the<br>Company effects any sale to another Person of all or substantially all of its assets in one or a series<br>of related transactions, (iii) pursuant to any tender offer or exchange offer (whether by the Company<br>or another Person), holders of capital stock tender shares representing more than 50% of the voting<br>power of the capital stock of the Company and the Company or such other Person, as applicable,<br>accepts such tender for payment, (iv) the Company consummates a stock purchase agreement or<br>other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than<br>50% of the voting power of the capital stock of the Company (except for any such transaction in<br>which the stockholders of the Company immediately prior to such transaction maintain, in<br>substantially the same proportions, the voting power of such Person immediately after the<br>transaction) or (v) the Company effects any reclassification of the Common Stock or any<br>compulsory share exchange pursuant to which the Common Stock is effectively converted into or<br>exchanged for other securities, cash or property (other than as a result of a subdivision or<br>combination of shares of Common Stock covered by Section 9(a) above) (in any such case, a<br>“Fundamental Transaction”), then following such Fundamental Transaction the Holder shall have<br>the right to receive, upon exercise of this Warrant, the same amount and kind of securities, cash or<br>property as it would have been entitled to receive upon the occurrence of such Fundamental<br>Transaction if it had been, immediately prior to such Fundamental Transaction, the holder of the<br>number of Warrant Shares then issuable upon exercise in full of this Warrant (including any<br>Distributions or Purchase Rights then held in abeyance pursuant to Sections 9(b) or 9(c) above)<br>without regard to any limitations on exercise contained herein (the “Alternate Consideration”).<br>The Company shall not effect any Fundamental Transaction in which the Company is not the<br>surviving entity or the Alternate Consideration includes securities of another Person unless prior to<br>or simultaneously with the consummation thereof, any successor to the Company, surviving entity<br>or other Person (including any purchaser of assets of the Company) shall assume the obligation to<br>deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions,<br>the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions<br>of this paragraph (d) shall similarly apply to subsequent transactions analogous to a Fundamental<br>Transaction type.<br>(e) Number of Warrant Shares. Simultaneously with any adjustment to the<br>Number of Warrant Shares pursuant to Section 9, the Exercise Price shall be increased or decreased<br>proportionately, so that after such adjustment the aggregate Exercise Price payable hereunder for<br>the increased or decreased Number of Warrant Shares shall be the same as the aggregate Exercise<br>Price in effect immediately prior to such adjustment. Notwithstanding the foregoing, in no event<br>may the Exercise Price be adjusted below the par value of the Common Stock then in effect.<br>(f) Calculations. All calculations under this Section 9 shall be made to the<br>nearest one-tenth of one cent or the nearest share, as applicable.<br>(g) Notice of Adjustments. Upon the occurrence of each adjustment pursuant to<br>this Section 9, the Company at its expense will, at the written request of the Holder, promptly<br>compute such adjustment, in good faith, in accordance with the terms of this Warrant and prepare<br>a certificate setting forth such adjustment, including a statement of the adjusted Exercise Price and<br>adjusted number or type of Warrant Shares or other securities issuable upon exercise of this
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US-DOCS\165270300.9<br>10<br>Warrant (as applicable), describing the transactions giving rise to such adjustments and showing<br>in detail the facts upon which such adjustment is based. Upon written request, the Company will<br>promptly deliver a copy of each such certificate to the Holder and to the Company’s transfer agent.<br>(h) Notice of Corporate Events. If, while this Warrant is outstanding, the<br>Company (i) declares a dividend or any other distribution of cash, securities or other property in<br>respect of its Common Stock, including, without limitation, any granting of rights or warrants to<br>subscribe for or purchase any capital stock of the Company or any subsidiary, (ii) authorizes or<br>approves, enters into any agreement contemplating or solicits stockholder approval for any<br>Fundamental Transaction or (iii) authorizes the voluntary dissolution, liquidation or winding up<br>of the affairs of the Company, then the Company shall deliver to the Holder a notice of such<br>transaction at least ten (10) days prior to the applicable record or effective date on which a Person<br>would need to hold Common Stock in order to participate in or vote with respect to such<br>transaction; provided, however, that the failure to deliver such notice or any defect therein shall<br>not affect the validity of the corporate action required to be described in such notice. In addition,<br>if while this Warrant is outstanding, the Company authorizes or approves, enters into any<br>agreement contemplating or solicits stockholder approval for any Fundamental Transaction<br>contemplated by Section 9(d), other than a Fundamental Transaction under clause (iii) of Section<br>9(d), the Company shall deliver to the Holder a notice of such Fundamental Transaction at least<br>thirty (30) days prior to the date such Fundamental Transaction is consummated. Holder agrees<br>to maintain any information disclosed pursuant to this Section 9(h) in confidence until such<br>information is publicly available, and shall comply with applicable law with respect to trading in<br>the Company’s securities following receipt of any such information.<br>(i) Voluntary Adjustment By Company. Subject to the rules and regulations of<br>the Principal Trading Market, the Company may at any time during the term of this Warrant,<br>reduce the then-current Exercise Price to any amount and for any period of time deemed<br>appropriate by the board of directors of the Company.<br>(j) Share Combination Event Adjustment. In addition to the adjustments set<br>forth in this Section 9, if at any time on or after the Original Issue Date there occurs any share<br>split, reverse share split, share dividend, share combination recapitalization or other similar<br>transaction involving the Common Stock (each, a “Share Combination Event”, and such date<br>on which the Share Combination Event is effected, the “Share Combination Event Date”) and<br>the average VWAP of the Common Stock during the period commencing on the Trading Day<br>immediately following the applicable Share Combination Event Date and ending on the fifth (5th)<br>Trading Day immediately following the applicable Share Combination Event Date (such period<br>the “Share Combination Adjustment Period” and such price the “Event Market Price”)<br>(provided if the Share Combination Event is effective prior to the opening of trading on the<br>Trading Market, then the first Trading Day of the Share Combination Adjustment Period shall be<br>the date of the Share Combination Event), is less than the Exercise Price then in effect (after<br>giving effect to the adjustment in Section 9(a) above, then, at the close of trading on the Trading<br>Market on the last day of the Share Combination Adjustment Period, the Exercise Price then in<br>effect on such fifth (5th) Trading Day shall be reduced (but in no event increased) to the Event<br>Market Price and, subject to the limitations set forth in this Section 9(j), the number of Warrant<br>Shares issuable upon exercise of this Warrant hereunder (such resulting number, the “Share<br>Combination Issuable Shares”) shall be increased such that the aggregate Exercise Price payable
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US-DOCS\165270300.9<br>11<br>hereunder, after taking into account the decrease in the Exercise Price (not to be less than the<br>Floor Price (defined below)), shall be equal to the aggregate Exercise Price on the Original Issue<br>Date for the Warrant Shares then outstanding. For the avoidance of doubt, if the adjustment in<br>this Section 9(j) would otherwise result in an increase in the Exercise Price hereunder, no<br>adjustment shall be made, and if this Warrant is exercised, on any date on which the Holder<br>delivers an Exercise Notice to the Company during the Share Combination Adjustment Period,<br>solely with respect to such portion of this Warrant exercised on such applicable Exercise Date,<br>such applicable Share Combination Adjustment Period shall be deemed to have ended on, and<br>include, the Trading Day immediately prior to such Exercise Date and the Event Market Price on<br>such applicable Exercise Date will be the lowest VWAP of the Common Stock immediately prior<br>to the Share Combination Event Date and ending on, and including the Trading Day immediately<br>prior to such Exercise Date. Notwithstanding anything to the contrary herein, in no event shall the<br>Exercise Price be reduced to an amount less than one-third (1/3) of the market closing price of the<br>Company’s Common Stock as of November 12, 2025 (the “Floor Price”) (subject to adjustment<br>for stock splits, combinations and similar events).<br>10. [Reserved.]<br>11. Limitations on Exercise.<br>(a) Notwithstanding anything to the contrary contained herein, the Company<br>shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not<br>have the right to exercise any portion of the Warrant, and any such exercise shall be null and void<br>ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or<br>following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would<br>beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules<br>promulgated thereunder, in excess of 9.99% (the “Maximum Percentage”) of the Common Stock<br>that would be issued and outstanding following such exercise. For purposes of calculating beneficial<br>ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate<br>number of shares of Common Stock held and/or beneficially owned by the Holder together with the<br>Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially<br>owned by the Holder together with the Attribution Parties plus the number of shares of Common<br>Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being<br>made but shall exclude the number of shares of Common Stock which would be issuable upon (i)<br>exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the<br>Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any<br>other securities of the Company held and/or beneficially owned by such Holder or any Attribution<br>Party (including, without limitation, any convertible notes, convertible stock or warrants) that are<br>subject to a limitation on conversion or exercise analogous to the limitation contained herein. For<br>purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall,<br>except as set forth in the immediately preceding sentence, be calculated and determined in<br>accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For<br>purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a<br>Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected<br>in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other<br>public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent<br>public announcement by the Company or (3) any other notice by the Company or the Company’s
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US-DOCS\165270300.9<br>12<br>transfer agent setting forth the number of shares of Common Stock outstanding (such issued and<br>outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon<br>the written or oral request of the Holder, the Company shall within one business day confirm orally<br>and in writing or by electronic mail to the Holder the number of shares of Common Stock then<br>outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that<br>it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire<br>through the exercise of derivative securities and any limitations on exercise or conversion analogous<br>to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise<br>Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a<br>time when the actual number of outstanding shares of Common Stock is less than the Reported<br>Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of<br>shares of Common Stock then outstanding and, to the extent that such Exercise Notice would<br>otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as<br>determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must<br>notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such<br>Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”)<br>and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price<br>paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of<br>Common Stock shall be determined after giving effect to the conversion or exercise of securities of<br>the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of<br>which the Reported Outstanding Share Number was reported. In the event that the issuance of<br>Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the<br>Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum<br>Percentage of the number of outstanding shares of Common Stock (as determined under Section<br>13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with<br>the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the<br>“Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder<br>and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As<br>soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and<br>void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess<br>Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase<br>or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified<br>in such notice; provided that any increase in the Maximum Percentage will not be effective until<br>the 61st day after such notice is delivered to the Company and shall not negatively affect any<br>partial exercise effected prior to such change.<br>(b) This Section 11 shall not restrict the number of shares of Common Stock<br>which a Holder or the Attribution Parties may receive or beneficially own in order to determine<br>the amount of securities or other consideration that such Holder or the Attribution Parties may<br>receive in the event of a Fundamental Transaction as contemplated in Section 9(d) of this Warrant.<br>For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant<br>in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder<br>or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange<br>Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules<br>promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant<br>pursuant to this paragraph shall have any effect on the applicability of the provisions of this<br>paragraph with respect to any subsequent determination of exercisability. The provisions of this
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US-DOCS\165270300.9<br>13<br>paragraph shall be construed and implemented in a manner otherwise than in strict conformity<br>with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of<br>this paragraph which may be defective or inconsistent with the intended beneficial ownership<br>limitation contained in this Section 11 or to make changes or supplements necessary or desirable<br>to properly give effect to such limitation. The limitation contained in this paragraph may not be<br>waived and shall apply to a successor holder of this Warrant.<br>12. No Fractional Shares. No fractional Warrant Shares will be issued in connection<br>with any exercise of this Warrant. In lieu of any fractional shares that would otherwise be issuable,<br>the number of Warrant Shares to be issued shall be rounded down to the next whole number and<br>the Company shall pay the Holder in cash the fair market value (based on the Closing Sale Price)<br>for any such fractional shares.<br>13. Notices. Any and all notices or other communications or deliveries hereunder<br>(including, without limitation, any Exercise Notice) shall be in writing and shall be deemed given<br>and effective on the earliest of (i) the date of transmission, if such notice or communication is<br>delivered confirmed e-mail at the e-mail address specified in the books and records of the Transfer<br>Agent prior to 5:30 P.M., New York City time, on a Trading Day, (ii) the next Trading Day after<br>the date of transmission, if such notice or communication is delivered via confirmed e-mail at the<br>e-mail address specified in the books and records of the Transfer Agent on a day that is not a Trading<br>Day or later than 5:30 P.M., New York City time, on any Trading Day, (iii) the Trading Day<br>following the date of mailing, if sent by nationally recognized overnight courier service specifying<br>next business day delivery, or (iv) upon actual receipt by the Person to whom such notice is<br>required to be given, if by hand delivery.<br>14. Warrant Agent. The Company shall initially serve as warrant agent under this<br>Warrant. Upon 30 days’ notice to the Holder, the Company may appoint a new warrant agent. Any<br>corporation into which the Company or any new warrant agent may be merged or any corporation<br>resulting from any consolidation to which the Company or any new warrant agent shall be a party<br>or any corporation to which the Company or any new warrant agent transfers substantially all of its<br>corporate trust or shareholders services business shall be a successor warrant agent under this<br>Warrant without any further act. Any such successor warrant agent shall promptly cause notice of<br>its succession as warrant agent to be mailed (by first class mail, postage prepaid) to the Holder at<br>the Holder’s last address as shown on the Warrant Register.<br>15. Miscellaneous.<br>(a) No Rights as a Stockholder. Except as otherwise set forth in this Warrant, the<br>Holder, solely in such Person’s capacity as a holder of this Warrant, shall not be entitled to vote or<br>receive dividends or be deemed the holder of share capital of the Company for any purpose, nor<br>shall anything contained in this Warrant be construed to confer upon the Holder, solely in such<br>Person’s capacity as the Holder of this Warrant, any of the rights of a stockholder of the Company<br>or any right to vote, give or withhold consent to any corporate action (whether any reorganization,<br>issue of stock, reclassification of stock, consolidation, merger, amalgamation, conveyance or<br>otherwise), receive notice of meetings, receive dividends or subscription rights, or otherwise, prior<br>to the issuance to the Holder of the Warrant Shares which such Person is then entitled to receive<br>upon the due exercise of this Warrant. In addition, nothing contained in this Warrant shall be
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US-DOCS\165270300.9<br>14<br>construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this<br>Warrant or otherwise) or as a stockholder of the Company, whether such liabilities are asserted by<br>the Company or by creditors of the Company.<br>(b) Further Assurances. Except and to the extent as waived or consented to by<br>the Holder, the Company shall not by any action, including, without limitation, amending its<br>certificate or articles of incorporation or through any reorganization, transfer of assets,<br>consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid<br>or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all<br>times in good faith assist in the carrying out of all such terms and in the taking of all such actions<br>as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against<br>impairment. Without limiting the generality of the foregoing, the Company will (a) not increase<br>the par value of any Warrant Shares above the amount payable therefor upon such exercise<br>immediately prior to such increase in par value, (b) take all such action as may be necessary or<br>appropriate in order that the Company may validly and legally issue fully paid and non-assessable<br>Warrant Shares upon the exercise of this Warrant, and (c) use commercially reasonable efforts to<br>obtain all such authorizations, exemptions or consents from any public regulatory body having<br>jurisdiction thereof as may be necessary to enable the Company to perform its obligations under<br>this Warrant. Before taking any action which would result in an adjustment in the number of<br>Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall<br>obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary<br>from any public regulatory body or bodies having jurisdiction thereof.<br>(c) Successors and Assigns. Subject to compliance with applicable securities<br>laws, this Warrant may be assigned by the Holder. This Warrant may not be assigned by the<br>Company without the written consent of the Holder, except to a successor in the event of a<br>Fundamental Transaction. This Warrant shall be binding on and inure to the benefit of the<br>Company and the Holder and their respective successors and assigns. Subject to the preceding<br>sentence, nothing in this Warrant shall be construed to give to any Person other than the Company<br>and the Holder any legal or equitable right, remedy or cause of action under this Warrant. This<br>Warrant may be amended only in writing signed by the Company and the Holder, or their<br>successors and assigns.<br>(d) Amendment and Waiver. This Warrant may be amended only in writing<br>signed by the Company and the Holder, or their successors and assigns. Except as otherwise<br>provided herein, the Company may take any action herein prohibited, or omit to perform any act<br>herein required to be performed by it, only if the Company has obtained the written consent of the<br>Holder.<br>(e) Acceptance. Receipt of this Warrant by the Holder shall constitute<br>acceptance of and agreement to all of the terms and conditions contained herein.<br>(f) Governing Law; Jurisdiction. ALL QUESTIONS CONCERNING THE<br>CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS<br>WARRANT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN<br>ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD<br>TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF. EACH OF THE COMPANY
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US-DOCS\165270300.9<br>15<br>AND THE HOLDER HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE<br>JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW<br>YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE<br>HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY TRANSACTION<br>CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO<br>THE ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS), AND HEREBY<br>IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR<br>PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE<br>JURISDICTION OF ANY SUCH COURT. EACH OF THE COMPANY AND THE HOLDER<br>HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS<br>TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY<br>MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT<br>DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PERSON AT THE ADDRESS IN<br>EFFECT FOR NOTICES TO IT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE<br>GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING<br>CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO<br>SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. EACH OF THE COMPANY<br>AND THE HOLDER HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY.<br>(g) Headings. The headings herein are for convenience only, do not constitute<br>a part of this Warrant and shall not be deemed to limit or affect any of the provisions hereof.<br>(h) Severability. If any part or provision of this Warrant is held unenforceable<br>or in conflict with the applicable laws or regulations of any jurisdiction, the invalid or<br>unenforceable part or provisions shall be replaced with a provision which accomplishes, to the<br>extent possible, the original business purpose of such part or provision in a valid and<br>enforceable manner, and the remainder of this Warrant shall remain binding upon the parties<br>hereto.<br>[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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US-DOCS\165270300.9<br>16<br>IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by<br>its authorized officer as of the date first indicated above.<br>AEON BIOPHARMA, INC.<br>By:<br>Name:<br>Title:
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US-DOCS\165270300.9<br>17<br>SCHEDULE 1<br>FORM OF EXERCISE NOTICE<br>[To be executed by the Holder to purchase shares of Common Stock under the Warrant]<br>Ladies and Gentlemen:<br>(1) The undersigned is the Holder of Warrant No. __ (the “Warrant”) issued by AEON Biopharma, Inc., a Delaware<br>corporation (the “Company”). Capitalized terms used herein and not otherwise defined herein have the respective<br>meanings set forth in the Warrant.<br>(2) The undersigned hereby exercises its right to purchase _____ Warrant Shares pursuant to the Warrant.<br>(3) The Holder shall pay the sum of $ _____ in immediately available funds to the Company in accordance with the<br>terms of the Warrant.<br>(4) Pursuant to this Exercise Notice, the Company shall deliver to the Holder Warrant Shares determined in<br>accordance with the terms of the Warrant.<br>(5) By its delivery of this Exercise Notice, the undersigned represents and warrants to the Company that in giving<br>effect to the exercise evidenced hereby (i) the Holder is an “accredited investor” as defined in Regulation D<br>promulgated under the Securities Act of 1933, as amended and (ii) the Holder will not beneficially own in excess of<br>the number of shares of Common Stock (as determined in accordance with Section 13(d) of the Securities Exchange<br>Act of 1934, as amended) permitted to be owned under Section 11(a) of the Warrant to which this notice relates.<br>Dated:<br>Name of Holder:<br>By:<br>Name:<br>Title:<br>(Signature must conform in all respects to name of Holder as specified on the face of the Warrant)
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US-DOCS\165270300.9<br>18<br>EXHIBIT A<br>FORM OF PRE-FUNDED WARRANT
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Exhibit 4.3

US-DOCS\165270001.2<br>THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE<br>EXERCISE OF THIS WARRANT (THE “SECURITIES”) HAVE NOT BEEN<br>REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE<br>“SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED<br>STATES. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY<br>NOT BE SOLD, TRANSFERRED OR ASSIGNED UNLESS (I) SUCH SECURITIES<br>HAVE BEEN REGISTERED FOR SALE PURSUANT TO THE SECURITIES ACT, (II)<br>SUCH SECURITIES MAY BE SOLD PURSUANT TO RULE 144 UNDER THE<br>SECURITIES ACT, (III) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL<br>REASONABLY SATISFACTORY TO IT THAT SUCH TRANSFER MAY LAWFULLY<br>BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT, OR (IV) THE<br>SECURITIES ARE TRANSFERRED WITHOUT CONSIDERATION TO AN AFFILIATE<br>OF SUCH HOLDER OR A CUSTODIAL NOMINEE (WHICH FOR THE AVOIDANCE<br>OF DOUBT SHALL REQUIRE NEITHER CONSENT NOR THE DELIVERY OF AN<br>OPINION).<br>FORM OF TRUE-UP WARRANT TO PURCHASE COMMON STOCK<br>Number of Shares: [•]<br>(subject to adjustment)<br>True-Up Warrant No. [•] Original Issue Date: [•], 2025<br>AEON Biopharma, Inc., a Delaware corporation (the “Company”), hereby certifies that,<br>for good and valuable consideration, the receipt and sufficiency of which are hereby<br>acknowledged, [•] or its registered assigns (the “Holder”), is entitled, subject to the terms set forth<br>below, to purchase from the Company up to a total of [•] shares of Class A common stock, $0.0001<br>par value per share (the “Common Stock”), of the Company (each such share, a “Warrant Share”<br>and all such shares, the “Warrant Shares”) at an exercise price per share equal to $0.0001 (the<br>“Exercise Price”), in each case as adjusted from time to time as provided in Section 9, upon<br>surrender of this True-Up Warrant to Purchase Common Stock (including any Warrants to<br>Purchase Common Stock issued in exchange, transfer or replacement hereof, the “Warrant”) at<br>any time and from time to time on or after the date hereof (the “Original Issue Date”), subject to<br>the following terms and conditions:<br>1. Definitions. For purposes of this Warrant, the following terms shall have the<br>following meanings:<br>“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly<br>through one or more intermediates, controls, is controlled by or is under common control with<br>such Person.<br>“Attribution Parties” means, collectively, the following Persons and entities: (i) any direct<br>or indirect Affiliates of the Holder, (ii) any investment vehicle, including, any funds, feeder funds or<br>managed accounts, currently, or from time to time after the date hereof, directly or indirectly managed<br>or advised by the Holder’s investment manager or any of its Affiliates or principals, (iii) any Person
US-DOCS\165270001.2<br>acting or who could be deemed to be acting as a Group together with the Holder or any Attribution<br>Parties and (iv) any other Persons whose beneficial ownership of the Company’s Common Stock<br>would or could be aggregated with the Holder’s and/or any other Attribution Parties for purposes of<br>Section 13(d) or Section 16 of the Exchange Act. For clarity, the purpose of the foregoing is to subject<br>collectively the Holder and all other Attribution Parties to the Maximum Percentage.<br>“Closing Sale Price” means, for any security as of any date, the last trade price for such<br>security on the Principal Trading Market for such security, as reported by Bloomberg Financial<br>Markets, or, if such Principal Trading Market begins to operate on an extended hours basis and does<br>not designate the last trade price, then the last trade price of such security prior to 4:00 P.M., New<br>York City time, as reported by Bloomberg Financial Markets, or if the foregoing do not apply, the<br>last trade price of such security in the over-the-counter market on the electronic bulletin board for<br>such security as reported by Bloomberg Financial Markets. If the Closing Sale Price cannot be<br>calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price<br>of such security on such date shall be the fair market value as mutually determined by the Company<br>and the Holder. If the Company and the Holder are unable to agree upon the fair market value of<br>such security, then the Board of Directors of the Company shall use its good faith judgment to<br>determine the fair market value. The Board of Directors’ determination shall be binding upon all<br>parties absent demonstrable error. All such determinations shall be appropriately adjusted for any<br>stock dividend, stock split, stock combination or other similar transaction during the applicable<br>calculation period.<br>“Commission” means the U.S. Securities and Exchange Commission.<br>“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and all of<br>the rules and regulations promulgated thereunder.<br>“Group” shall have the meaning ascribed to it in Section 13(d) of the Exchange Act, and<br>all related rules, regulations and jurisprudence.<br>“Person” means an individual, partnership, corporation, limited liability company,<br>business trust, joint stock company, trust, incorporated or unincorporated association, joint<br>venture, government (or an agency or subdivision thereof) or any other entity or organization.<br>“Principal Trading Market” means the national securities exchange or other trading<br>market on which the Common Stock is primarily listed on and quoted for trading, which, as of the<br>Original Issue Date, shall be the NYSE American.<br>“Securities Act” means the U.S. Securities Act of 1933, as amended, and all of the rules<br>and regulations promulgated thereunder.<br>“Standard Settlement Period” means the standard settlement period, expressed in a<br>number of Trading Days, for the Principal Trading Market with respect to the Common Stock that<br>is in effect on the date of delivery of an applicable Exercise Notice, which as of the Original Issue<br>Date was “T+1.”
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US-DOCS\165270001.2<br>“Trading Day” means any weekday on which the Principal Trading Market is normally<br>open for trading.<br>“Trading Market” means any of the following markets or exchanges on which the<br>Common Stock is listed or quoted for trading on the date in question: the NYSE American, the<br>Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New<br>York Stock Exchange (or any successors to any of the foregoing).<br>“Transfer Agent” means Continental Stock Transfer & Trust Co., the Company’s transfer<br>agent and registrar for the Common Stock, and any successor appointed in such capacity.<br>“VWAP” means, for any date, the price determined by the first of the following clauses<br>that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily<br>volume weighted average price of the Common Stock for such date (or the nearest preceding date)<br>on the Trading Market on which the Common Stock is then listed or quoted as reported by<br>Bloomberg (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York<br>City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price<br>of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as<br>applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX<br>and if prices for the Common Stock are then reported on The Pink Open Market (or a similar<br>organization or agency succeeding to its functions of reporting prices), the most recent bid price<br>per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a<br>share of Common Stock as determined by an independent appraiser selected in good faith by the<br>Company and the Holder, the fees and expenses of which shall be paid by the Company.<br>2. Issuance of Securities; Registration of Warrants. The Company shall register<br>ownership of this Warrant, upon records to be maintained by the Company for that purpose (the<br>“Warrant Register”), in the name of the record Holder (which shall include the initial Holder or,<br>as the case may be, any assignee to which this Warrant is permissibly assigned hereunder) from<br>time to time. The Company may deem and treat the registered Holder of this Warrant as the<br>absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and<br>for all other purposes, absent actual notice to the contrary.<br>3. Registration of Transfers. This Warrant and all rights hereunder (including,<br>without limitation, any registration rights) are transferable, in whole or in part, upon surrender of<br>this Warrant at the principal office of the Company or its designated agent, together with a written<br>assignment of this Warrant substantially in the form attached hereto duly executed by the Holder<br>or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of<br>such transfer. Subject to compliance with all applicable securities laws, the Company shall, or<br>will cause its Transfer Agent to, register the transfer of all or any portion of this Warrant in the<br>Warrant Register, upon surrender of this Warrant, and payment for all applicable transfer taxes (if<br>any). Upon any such registration or transfer, a new warrant to purchase Common Stock in<br>substantially the form of this Warrant (any such new warrant, a “New Warrant”) evidencing the<br>portion of this Warrant so transferred shall be issued to the transferee, and a New Warrant<br>evidencing the remaining portion of this Warrant not so transferred, if any, shall be issued to the<br>transferring Holder. The acceptance of the New Warrant by the transferee thereof shall be deemed<br>the acceptance by such transferee of all of the rights and obligations in respect of the New Warrant
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US-DOCS\165270001.2<br>that the Holder has in respect of this Warrant. The Company shall, or will cause its Transfer Agent<br>to, prepare, issue and deliver at the Company’s own expense any New Warrant under this Section<br>3. Until due presentment for registration of transfer, the Company may treat the registered Holder<br>hereof as the owner and holder for all purposes, and the Company shall not be affected by any<br>notice to the contrary.<br>4. Exercise of Warrants.<br>(a) All or any part of this Warrant shall be exercisable by the registered Holder<br>in any manner permitted by this Warrant (including Section 11) at any time and from time to time<br>on or after the Original Issue Date, and such rights shall not expire until exercised in full.<br>(b) The Holder may exercise this Warrant by delivering to the Company (i) an<br>exercise notice, in the form attached as Schedule 1 hereto (the “Exercise Notice”), completed and<br>duly signed, and (ii) payment of the Exercise Price for the number of Warrant Shares as to which<br>this Warrant is being exercised (which may take the form of a “cashless exercise” if so indicated<br>in the Exercise Notice pursuant to Section 10 below), and the date on which the last of such items<br>is delivered to the Company (as determined in accordance with the notice provisions hereof) is an<br>“Exercise Date.” The Holder shall not be required to deliver the original Warrant in order to effect<br>an exercise hereunder. Execution and delivery of the Exercise Notice shall have the same effect as<br>cancellation of the original Warrant and issuance of a New Warrant evidencing the right to<br>purchase the remaining number of Warrant Shares, if any.<br>(c) The Holder and any assignee, by acceptance of this Warrant, acknowledge<br>and agree that, by reason of the provisions of this section, following the purchase of a portion of<br>the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at<br>any given time may be less than the amount stated on the face hereof.<br>5. Delivery of Warrant Shares.<br>(a) Upon exercise of this Warrant, the Company shall promptly (but in no event<br>later than the earliest of (i) two (2) Trading Days after delivery to the Company of the Exercise<br>Notice, (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company and<br>(iii) the number of Trading Days comprising the Standard Settlement Period following the Exercise<br>Date (such date, the “Warrant Share Delivery Date”)) cause the Transfer Agent to credit such<br>aggregate number of shares of Common Stock specified by the Holder in the Exercise Notice and to<br>which the Holder is entitled pursuant to such exercise (the “Exercise Shares”) to (i) the Holder’s or<br>its designee’s balance account with The Depository Trust Company (“DTC”) through its Deposit<br>Withdrawal At Custodian system or (ii) in book-entry form via a direct registration system (“DRS”)<br>maintained by or on behalf of the Transfer Agent, in each case, so long as either (A) there is an<br>effective registration statement permitting the issuance of the Warrant Shares to or the resale of such<br>Warrant Shares by the Holder or (B) the Exercise Shares are eligible for resale by the Holder without<br>volume or manner-of-sale restrictions pursuant to Rule 144 promulgated under the Securities Act<br>(assuming cashless exercise of this Warrant). If (A) and (B) above are not true, the Company shall<br>cause the Transfer Agent to either (i) record the Exercise Shares in the name of the Holder or its<br>designee on the certificates reflecting the Exercise Shares with an appropriate legend regarding<br>restriction on transferability, which shall be issued and dispatched by overnight courier to the address
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US-DOCS\165270001.2<br>as specified in the Exercise Notice, and on the Company’s share register or (ii) issue such Exercise<br>Shares in the name of the Holder or its designee in restricted book-entry form in the Company’s<br>share register. The Holder, or any Person so designated by the Holder to receive Warrant Shares,<br>shall be deemed to have become the holder of record of such Warrant Shares as of the Exercise Date,<br>irrespective of the date such Warrant Shares are credited to the Holder’s DTC account, the date of<br>the book entry positions or the date of delivery of the certificates evidencing such Exercise Shares,<br>as the case may be. If the Company fails to instruct the Transfer Agent to deliver to the Holder or its<br>designee the Exercise Shares in the manner required pursuant to this Section 5(a) by the Warrant<br>Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not<br>as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the<br>Common Stock on the date of the applicable Exercise Notice), $10 per Trading Day (increasing to<br>$20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each<br>Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or the<br>Holder rescinds such exercise. The Company agrees to maintain a Transfer Agent that is a participant<br>in the FAST program so long as this Warrant remains outstanding and exercisable.<br>(b) In addition to any other rights available to the Holder, if the Company fails<br>to cause the Transfer Agent to deliver to the Holder or its designee Exercise Shares in the manner<br>required pursuant to Section 5(a) within the Standard Settlement Period following the Exercise Date<br>(other than a failure caused by incorrect or incomplete information provided by the Holder to the<br>Company) and the Holder or the Holder’s broker on its behalf purchases (in an open market<br>transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder<br>of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”) but<br>did not receive within the Standard Settlement Period, then the Company shall, within two (2)<br>Trading Days after the Holder’s request and in the Holder’s sole discretion, promptly honor its<br>obligation to deliver to the Holder or its designee the Exercise Shares pursuant to Section 5(a) and<br>pay cash to the Holder in an amount equal to the excess (if any) of the Holder’s total purchase price<br>(including brokerage commissions, if any) for the shares of Common Stock so purchased in the<br>Buy-In, less the product of (A) the number of shares of Common Stock purchased in the Buy-In,<br>times (B) the Closing Sale Price of a share of Common Stock on the Exercise Date. The Holder<br>shall provide the Company written notice promptly after the occurrence of a Buy-In, indicating the<br>amounts payable to the Holder in respect of the Buy-In together with applicable confirmations and<br>other evidence reasonably requested by the Company. If the Company fails to cause the Transfer<br>Agent to transmit the Exercise Shares pursuant to Section 5(a) by the Warrant Share Delivery Date,<br>the Holder shall have the right to rescind such exercise in addition to all other rights and remedies<br>at law or in equity.<br>(c) To the extent permitted by law and subject to Section 5(b), the Company’s<br>obligations to issue and deliver Warrant Shares in accordance with and subject to the terms hereof<br>(including the limitations set forth in Section 11 below) are absolute and unconditional, irrespective<br>of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any<br>provision hereof, the recovery of any judgment against any Person or any action to enforce the same,<br>or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach<br>by the Holder or any other Person of any obligation to the Company or any violation or alleged<br>violation of law by the Holder or any other Person, and irrespective of any other circumstance that<br>might otherwise limit such obligation of the Company to the Holder in connection with the<br>issuance of Warrant Shares. Subject to Section 5(b), nothing herein shall limit the Holder’s right
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US-DOCS\165270001.2<br>to pursue any other remedies available to it hereunder, at law or in equity including, without<br>limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s<br>failure to timely deliver Exercise Shares; provided, however, that the Holder shall not be entitled<br>to both (i) require the Company to reinstate the portion of the Warrant and equivalent number of<br>Warrant Shares for which such exercise was not timely honored and (ii) receive the number of<br>shares of Common Stock that would have been issued if the Company had timely complied with<br>its delivery requirements under Section 5(a).<br>6. Charges, Taxes and Expenses. Issuance and delivery of Exercise Shares shall be<br>made without charge to the Holder for any issue or transfer tax, transfer agent fee or other<br>incidental tax or expense (excluding any applicable stamp duties) in respect of the issuance of such<br>shares, all of which taxes and expenses shall be paid by the Company; provided, however, that the<br>Company shall not be required to pay any tax that may be payable in respect of any transfer<br>involved in the registration of any Warrant Shares or the Warrants in a name other than that of the<br>Holder or an Affiliate thereof. The Holder shall be responsible for all other tax liability that may<br>arise as a result of holding or transferring this Warrant or receiving Warrant Shares upon exercise<br>hereof.<br>7. Replacement of Warrant. If this Warrant is mutilated, lost, stolen or destroyed,<br>the Company shall issue or cause to be issued in exchange and substitution for and upon<br>cancellation hereof, or in lieu of and substitution for this Warrant, a New Warrant, but only upon<br>receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction (in<br>such case) and, in each case, a customary and reasonable contractual indemnity, if requested by<br>the Company. If a New Warrant is requested as a result of a mutilation of this Warrant, then the<br>Holder shall deliver such mutilated Warrant to the Company as a condition precedent to the<br>Company’s obligation to issue the New Warrant.<br>8. Reservation of Warrant Shares. The Company covenants that it will, at all times<br>while this Warrant is outstanding, reserve and keep available out of the aggregate of its authorized<br>but unissued and otherwise unreserved Common Stock, solely for the purpose of enabling it to issue<br>Warrant Shares upon exercise of this Warrant as herein provided, the number of Warrant Shares that<br>are initially issuable and deliverable upon the exercise of this entire Warrant, free from preemptive<br>rights or any other contingent purchase rights of persons other than the Holder (taking into account<br>the adjustments and restrictions of Section 9). The Company covenants that all Warrant Shares so<br>issuable and deliverable shall, upon issuance and the payment of the applicable Exercise Price in<br>accordance with the terms hereof, be duly and validly authorized, issued and fully paid and non-assessable. The Company will take all such action as may be reasonably necessary to assure that<br>such shares of Common Stock may be issued as provided herein without violation of any applicable<br>law or regulation, or of any requirements of any securities exchange or automated quotation system<br>upon which the Common Stock may be listed. The Company further covenants that it will not,<br>without the prior written consent of the Holder, take any actions to increase the par value of the<br>Common Stock at any time while this Warrant is outstanding.<br>9. Certain Adjustments. The Exercise Price and number of Warrant Shares issuable<br>upon exercise of this Warrant (the “Number of Warrant Shares”) are subject to adjustment from<br>time to time as set forth in this Section 9.
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US-DOCS\165270001.2<br>(a) Stock Dividends and Splits. If the Company, at any time while this Warrant<br>is outstanding, (i) pays a stock dividend on its Common Stock or otherwise makes a distribution on<br>any class of capital stock issued and outstanding on the Original Issue Date and in accordance with<br>the terms of such stock on the Original Issue Date or as amended, that is payable in shares of<br>Common Stock, (ii) subdivides its outstanding shares of Common Stock into a larger number of<br>shares of Common Stock, (iii) combines (including by way of reverse stock split) its outstanding<br>shares of Common Stock into a smaller number of shares of Common Stock or (iv) issues by<br>reclassification of shares of capital stock any additional shares of Common Stock of the Company,<br>then in each such case the Number of Warrant Sharesshall be multiplied by a fraction, the numerator<br>of which shall be the number of shares of Common Stock outstanding immediately after such event<br>and the denominator of which shall be the number of shares of Common Stock outstanding<br>immediately before such event. Any adjustment made pursuant to clause (i) of this paragraph shall<br>become effective immediately after the record date for the determination of stockholders entitled to<br>receive such dividend or distribution, provided, however, that if such record date shall have been<br>fixed and such dividend is not fully paid on the date fixed therefor, the Number of Warrant Shares<br>shall be recomputed accordingly as of the close of business on such record date and thereafter the<br>Number of Warrant Shares shall be adjusted pursuant to this paragraph as of the time of actual<br>payment of such dividends. Any adjustment pursuant to clause (ii), (iii) or (iv) of this paragraph<br>shall become effective immediately after the effective date of such subdivision, combination or<br>issuance.<br>(b) Pro Rata Distributions. If, on or after the Original Issue Date, the Company<br>shall declare or make any dividend or other pro rata distribution of its assets (or rights to acquire<br>its assets) to holders of shares of Common Stock, by way of return of capital or otherwise<br>(including, without limitation, any distribution of cash, stock or other securities, property, options,<br>evidence of indebtedness or any other assets by way of a dividend, spin off, reclassification,<br>corporate rearrangement, scheme of arrangement or other similar transaction, but, for the<br>avoidance of doubt, excluding any distribution of shares of Common Stock subject to Section 9(a),<br>any distribution of Purchase Rights (as defined below) subject to Section 9(c) and any Fundamental<br>Transaction (as defined below) subject to Section 9(d)) (a “Distribution”) then, in each such case,<br>the Holder shall be entitled to participate in such Distribution to the same extent that the Holder<br>would have participated therein if the Holder had held the number of shares of Common Stock<br>acquirable upon complete exercise of this Warrant (without regard to any limitations or restrictions<br>on exercise of this Warrant, including without limitation, the Maximum Percentage (as defined<br>below)) immediately before the date on which a record is taken for such Distribution, or, if no such<br>record is taken, the date as of which the record holders of shares of Common Stock are to be<br>determined for the participation in such Distribution; provided, that to the extent that the Holder’s<br>right to participate in any such Distribution would result in the Holder and the other Attribution<br>Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in<br>such Distribution to such extent (and shall not be entitled to beneficial ownership of such shares of<br>Common Stock as a result of such Distribution to such extent) and the portion of such Distribution<br>shall be held in abeyance for the benefit of the Holder until such time or times as its right thereto<br>would not result in the Holder and the other Attribution Parties exceeding the Maximum<br>Percentage, at which time or times the Holder shall be granted such Distribution (and any<br>Distributions declared or made on such initial Distribution or on any subsequent Distribution held<br>similarly in abeyance) to the same extent as if there had been no such limitation.
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US-DOCS\165270001.2<br>(c) Purchase Rights. If at any time on or after the Original Issue Date, the<br>Company grants, issues or sells any Options, Convertible Securities or rights to purchase stock,<br>warrants, securities or other property, in each case pro rata to the record holders of any class of<br>Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms<br>applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have<br>acquired if the Holder had held the number of shares of Common Stock acquirable upon complete<br>exercise of this Warrant (without regard to any limitations or restrictions on exercise of this Warrant,<br>including without limitation, the Maximum Percentage) immediately before the date on which a<br>record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken,<br>the date as of which the record holders of Common Stock are to be determined for the grant, issuance<br>or sale of such Purchase Rights; provided, that to the extent that the Holder’s right to participate in<br>any such Purchase Right would result in the Holder and the other Attribution Parties exceeding the<br>Maximum Percentage, then the Holder shall not be entitled to participate in such Purchase Right to<br>such extent (and shall not be entitled to beneficial ownership of such Common Stock as a result of<br>such Purchase Right (and beneficial ownership) to such extent) and at the Holder’s election, in its<br>sole discretion, either (1)such Purchase Right to such extent shall be held in abeyance for the benefit<br>of the Holder until such time or times as its right thereto would not result in the Holder and the other<br>Attribution Parties exceeding the Maximum Percentage, at which time or times the Holder shall be<br>granted such right (and any Purchase Right granted, issued or sold on such initial Purchase Right or<br>on any subsequent Purchase Right to be held similarly in abeyance) to the same extent as if there<br>had been no such limitation or (2) the Company shall offer the Holder the right upon exercise of<br>such Purchase Right to acquire a security (e.g. a pre-funded warrant) that would not result in the<br>Holder and the other Attribution Parties exceeding the Maximum Percentage but will otherwise to<br>the extent possible have economic and other rights, preferences and privileges substantially<br>consistent and on par with the securities or other property issuable upon exercise of the originally<br>offered Purchase Rights). As used in this Section 9(c), (i) “Options” means any rights, warrants or<br>options to subscribe for or purchase shares of Common Stock or Convertible Securities and (ii)<br>“Convertible Securities” mean any stock or securities (other than Options) directly or indirectly<br>convertible into or exercisable or exchangeable for shares of Common Stock.<br>(d) Fundamental Transactions. If, at any time while this Warrant is outstanding<br>(i) the Company effects any merger or consolidation of the Company with or into another Person,<br>in which the Company is not the surviving entity or in which the stockholders of the Company<br>immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50%<br>of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the<br>Company effects any sale to another Person of all or substantially all of its assets in one or a series<br>of related transactions, (iii) pursuant to any tender offer or exchange offer (whether by the Company<br>or another Person), holders of capital stock tender shares representing more than 50% of the voting<br>power of the capital stock of the Company and the Company or such other Person, as applicable,<br>accepts such tender for payment, (iv) the Company consummates a stock purchase agreement or<br>other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than<br>50% of the voting power of the capital stock of the Company (except for any such transaction in<br>which the stockholders of the Company immediately prior to such transaction maintain, in<br>substantially the same proportions, the voting power of such Person immediately after the<br>transaction) or (v) the Company effects any reclassification of the Common Stock or any<br>compulsory share exchange pursuant to which the Common Stock is effectively converted into or
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US-DOCS\165270001.2<br>exchanged for other securities, cash or property (other than as a result of a subdivision or<br>combination of shares of Common Stock covered by Section 9(a) above) (in any such case, a<br>“Fundamental Transaction”), then following such Fundamental Transaction the Holder shall have<br>the right to receive, upon exercise of this Warrant, the same amount and kind of securities, cash or<br>property as it would have been entitled to receive upon the occurrence of such Fundamental<br>Transaction if it had been, immediately prior to such Fundamental Transaction, the holder of the<br>number of Warrant Shares then issuable upon exercise in full of this Warrant (including any<br>Distributions or Purchase Rights then held in abeyance pursuant to Sections 9(b) or 9(c) above)<br>without regard to any limitations on exercise contained herein (the “Alternate Consideration”).<br>The Company shall not effect any Fundamental Transaction in which the Company is not the<br>surviving entity or the Alternate Consideration includes securities of another Person unless (i) the<br>Alternate Consideration is solely cash and the Company provides for the simultaneous “cashless<br>exercise” of this Warrant pursuant to Section 10 below or (ii) prior to or simultaneously with the<br>consummation thereof, any successor to the Company, surviving entity or other Person (including<br>any purchaser of assets of the Company) shall assume the obligation to deliver to the Holder such<br>Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled<br>to receive, and the other obligations under this Warrant. The provisions of this paragraph (d) shall<br>similarly apply to subsequent transactions analogous to a Fundamental Transaction type.<br>(e) Number of Warrant Shares. Simultaneously with any adjustment to the<br>Number of Warrant Shares pursuant to Section 9, the Exercise Price shall be increased or decreased<br>proportionately, so that after such adjustment the aggregate Exercise Price payable hereunder for<br>the increased or decreased Number of Warrant Shares shall be the same as the aggregate Exercise<br>Price in effect immediately prior to such adjustment. Notwithstanding the foregoing, in no event<br>may the Exercise Price be adjusted below the par value of the Common Stock then in effect.<br>(f) Calculations. All calculations under this Section 9 shall be made to the<br>nearest one-tenth of one cent or the nearest share, as applicable.<br>(g) Notice of Adjustments. Upon the occurrence of each adjustment pursuant to<br>this Section 9, the Company at its expense will, at the written request of the Holder, promptly<br>compute such adjustment, in good faith, in accordance with the terms of this Warrant and prepare<br>a certificate setting forth such adjustment, including a statement of the adjusted Exercise Price and<br>adjusted number or type of Warrant Shares or other securities issuable upon exercise of this<br>Warrant (as applicable), describing the transactions giving rise to such adjustments and showing<br>in detail the facts upon which such adjustment is based. Upon written request, the Company will<br>promptly deliver a copy of each such certificate to the Holder and to the Company’s transfer agent.<br>(h) Notice of Corporate Events. If, while this Warrant is outstanding, the<br>Company (i) declares a dividend or any other distribution of cash, securities or other property in<br>respect of its Common Stock, including, without limitation, any granting of rights or warrants to<br>subscribe for or purchase any capital stock of the Company or any subsidiary, (ii) authorizes or<br>approves, enters into any agreement contemplating or solicits stockholder approval for any<br>Fundamental Transaction or (iii) authorizes the voluntary dissolution, liquidation or winding up<br>of the affairs of the Company, then the Company shall deliver to the Holder a notice of such<br>transaction at least ten (10) days prior to the applicable record or effective date on which a Person<br>would need to hold Common Stock in order to participate in or vote with respect to such
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US-DOCS\165270001.2<br>transaction; provided, however, that the failure to deliver such notice or any defect therein shall<br>not affect the validity of the corporate action required to be described in such notice. In addition,<br>if while this Warrant is outstanding, the Company authorizes or approves, enters into any<br>agreement contemplating or solicits stockholder approval for any Fundamental Transaction<br>contemplated by Section 9(d), other than a Fundamental Transaction under clause (iii) of Section<br>9(d), the Company shall deliver to the Holder a notice of such Fundamental Transaction at least<br>thirty (30) days prior to the date such Fundamental Transaction is consummated. Holder agrees<br>to maintain any information disclosed pursuant to this Section 9(h) in confidence until such<br>information is publicly available, and shall comply with applicable law with respect to trading in<br>the Company’s securities following receipt of any such information.<br>10. Payment of Exercise Price. Notwithstanding anything contained herein to the<br>contrary, the Holder may, in its sole discretion, satisfy its obligation to pay the Exercise Price<br>through a “cashless exercise”, in which event the Company shall issue to the Holder the number<br>of Warrant Shares in an exchange of securities effected pursuant to Section 3(a)(9) of the Securities<br>Act, determined as follows:<br>X = Y [(A-B)/A]<br>where:<br>“X” equals the number of Warrant Shares to be issued to the Holder;<br>“Y” equals the total number of Warrant Shares with respect to which this Warrant<br>is then being exercised;<br>“A” equals the Closing Sale Price of the shares of Common Stock (as reported by<br>Bloomberg Financial Market) as of the Trading Day on the date immediately preceding<br>the Exercise Date); and<br>“B” equals the Exercise Price then in effect for the applicable Warrant Shares at<br>the time of such exercise.<br>For purposes of Rule 144 promulgated under the Securities Act, it is intended, understood and<br>acknowledged that the Warrant Shares issued in a “cashless exercise” transaction shall be deemed<br>to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed<br>to have commenced, on the Original Issue Date (provided that the Commission continues to take<br>the position that such treatment is proper at the time of such exercise). If the Warrant Shares are<br>issued in such a cashless exercise, the Company acknowledges and agrees that, in accordance with<br>Section 3(a)(9) of the Securities Act, the Exercise Shares issued in such exercise shall take on the<br>registered characteristics of the Warrants being exercised and may be tacked on to the holding<br>period of the Warrants being exercised. Except as set forth in Section 5(b) (Buy-in Remedy) and<br>Section 12 (No Fractional Shares), in no event will the exercise of this Warrant be settled in cash.<br>11. Limitations on Exercise.<br>(a) Notwithstanding anything to the contrary contained herein, the Company<br>shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not
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US-DOCS\165270001.2<br>have the right to exercise any portion of the Warrant, and any such exercise shall be null and void<br>ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or<br>following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would<br>beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules<br>promulgated thereunder, in excess of 9.99% (the “Maximum Percentage”) of the Common Stock<br>that would be issued and outstanding following such exercise. For purposes of calculating beneficial<br>ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate<br>number of shares of Common Stock held and/or beneficially owned by the Holder together with the<br>Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially<br>owned by the Holder together with the Attribution Parties plus the number of shares of Common<br>Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being<br>made but shall exclude the number of shares of Common Stock which would be issuable upon (i)<br>exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the<br>Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any<br>other securities of the Company held and/or beneficially owned by such Holder or any Attribution<br>Party (including, without limitation, any convertible notes, convertible stock or warrants) that are<br>subject to a limitation on conversion or exercise analogous to the limitation contained herein. For<br>purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall,<br>except as set forth in the immediately preceding sentence, be calculated and determined in<br>accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For<br>purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a<br>Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected<br>in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other<br>public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent<br>public announcement by the Company or (3) any other notice by the Company or the Company’s<br>transfer agent setting forth the number of shares of Common Stock outstanding (such issued and<br>outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon<br>the written or oral request of the Holder, the Company shall within one business day confirm orally<br>and in writing or by electronic mail to the Holder the number of shares of Common Stock then<br>outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that<br>it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire<br>through the exercise of derivative securities and any limitations on exercise or conversion analogous<br>to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise<br>Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a<br>time when the actual number of outstanding shares of Common Stock is less than the Reported<br>Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of<br>shares of Common Stock then outstanding and, to the extent that such Exercise Notice would<br>otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as<br>determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must<br>notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such<br>Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”)<br>and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price<br>paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of<br>Common Stock shall be determined after giving effect to the conversion or exercise of securities of<br>the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of<br>which the Reported Outstanding Share Number was reported. In the event that the issuance of
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US-DOCS\165270001.2<br>Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the<br>Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum<br>Percentage of the number of outstanding shares of Common Stock (as determined under Section<br>13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with<br>the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the<br>“Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder<br>and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As<br>soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and<br>void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess<br>Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase<br>or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified<br>in such notice; provided that any increase in the Maximum Percentage will not be effective until<br>the 61st day after such notice is delivered to the Company and shall not negatively affect any<br>partial exercise effected prior to such change.<br>(b) This Section 11 shall not restrict the number of shares of Common Stock<br>which a Holder or the Attribution Parties may receive or beneficially own in order to determine<br>the amount of securities or other consideration that such Holder or the Attribution Parties may<br>receive in the event of a Fundamental Transaction as contemplated in Section 9(d) of this Warrant.<br>For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant<br>in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder<br>or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange<br>Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules<br>promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant<br>pursuant to this paragraph shall have any effect on the applicability of the provisions of this<br>paragraph with respect to any subsequent determination of exercisability. The provisions of this<br>paragraph shall be construed and implemented in a manner otherwise than in strict conformity<br>with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of<br>this paragraph which may be defective or inconsistent with the intended beneficial ownership<br>limitation contained in this Section 11 or to make changes or supplements necessary or desirable<br>to properly give effect to such limitation. The limitation contained in this paragraph may not be<br>waived and shall apply to a successor holder of this Warrant.<br>12. No Fractional Shares. No fractional Warrant Shares will be issued in connection<br>with any exercise of this Warrant. In lieu of any fractional shares that would otherwise be issuable,<br>the number of Warrant Shares to be issued shall be rounded down to the next whole number and<br>the Company shall pay the Holder in cash the fair market value (based on the Closing Sale Price)<br>for any such fractional shares.<br>13. Notices. Any and all notices or other communications or deliveries hereunder<br>(including, without limitation, any Exercise Notice) shall be in writing and shall be deemed given<br>and effective on the earliest of (i) the date of transmission, if such notice or communication is<br>delivered confirmed e-mail at the e-mail address specified in the books and records of the Transfer<br>Agent prior to 5:30 P.M., New York City time, on a Trading Day, (ii) the next Trading Day after the<br>date of transmission, if such notice or communication is delivered via confirmed e-mail at the e-mail<br>address specified in the books and records of the Transfer Agent on a day that is not a Trading Day<br>or later than 5:30 P.M., New York City time, on any Trading Day, (iii) the Trading Day following
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US-DOCS\165270001.2<br>the date of mailing, if sent by nationally recognized overnight courier service specifying next<br>business day delivery, or (iv) upon actual receipt by the Person to whom such notice is required to<br>be given, if by hand delivery.<br>14. Warrant Agent. The Company shall initially serve as warrant agent under this<br>Warrant. Upon 30 days’ notice to the Holder, the Company may appoint a new warrant agent. Any<br>corporation into which the Company or any new warrant agent may be merged or any corporation<br>resulting from any consolidation to which the Company or any new warrant agent shall be a party<br>or any corporation to which the Company or any new warrant agent transfers substantially all of its<br>corporate trust or shareholders services business shall be a successor warrant agent under this<br>Warrant without any further act. Any such successor warrant agent shall promptly cause notice of<br>its succession as warrant agent to be mailed (by first class mail, postage prepaid) to the Holder at<br>the Holder’s last address as shown on the Warrant Register.<br>15. Miscellaneous.<br>(a) No Rights as a Stockholder. Except as otherwise set forth in this Warrant, the<br>Holder, solely in such Person’s capacity as a holder of this Warrant, shall not be entitled to vote or<br>receive dividends or be deemed the holder of share capital of the Company for any purpose, nor<br>shall anything contained in this Warrant be construed to confer upon the Holder, solely in such<br>Person’s capacity as the Holder of this Warrant, any of the rights of a stockholder of the Company<br>or any right to vote, give or withhold consent to any corporate action (whether any reorganization,<br>issue of stock, reclassification of stock, consolidation, merger, amalgamation, conveyance or<br>otherwise), receive notice of meetings, receive dividends or subscription rights, or otherwise, prior<br>to the issuance to the Holder of the Warrant Shares which such Person is then entitled to receive<br>upon the due exercise of this Warrant. In addition, nothing contained in this Warrant shall be<br>construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this<br>Warrant or otherwise) or as a stockholder of the Company, whether such liabilities are asserted by<br>the Company or by creditors of the Company.<br>(b) Further Assurances. Except and to the extent as waived or consented to by<br>the Holder, the Company shall not by any action, including, without limitation, amending its<br>certificate or articles of incorporation or through any reorganization, transfer of assets,<br>consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid<br>or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all<br>times in good faith assist in the carrying out of all such terms and in the taking of all such actions<br>as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant<br>against impairment. Without limiting the generality of the foregoing, the Company will (a) not<br>increase the par value of any Warrant Shares above the amount payable therefor upon such<br>exercise immediately prior to such increase in par value, (b) take all such action as may be<br>necessary or appropriate in order that the Company may validly and legally issue fully paid and<br>non-assessable Warrant Shares upon the exercise of this Warrant, and (c) use commercially<br>reasonable efforts to obtain all such authorizations, exemptions or consents from any public<br>regulatory body having jurisdiction thereof as may be necessary to enable the Company to perform<br>its obligations under this Warrant. Before taking any action which would result in an adjustment<br>in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price,
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US-DOCS\165270001.2<br>the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as<br>may be necessary from any public regulatory body or bodies having jurisdiction thereof.<br>(c) Successors and Assigns. Subject to compliance with applicable securities<br>laws, this Warrant may be assigned by the Holder. This Warrant may not be assigned by the<br>Company without the written consent of the Holder, except to a successor in the event of a<br>Fundamental Transaction. This Warrant shall be binding on and inure to the benefit of the<br>Company and the Holder and their respective successors and assigns. Subject to the preceding<br>sentence, nothing in this Warrant shall be construed to give to any Person other than the Company<br>and the Holder any legal or equitable right, remedy or cause of action under this Warrant.<br>(d) Amendment and Waiver. This Warrant may be amended only in writing<br>signed by the Company and the Holder, or their successors and assigns. Except as otherwise<br>provided herein, the Company may take any action herein prohibited, or omit to perform any act<br>herein required to be performed by it, only if the Company has obtained the written consent of the<br>Holder.<br>(e) Acceptance. Receipt of this Warrant by the Holder shall constitute<br>acceptance of and agreement to all of the terms and conditions contained herein.<br>(f) Governing Law; Jurisdiction. ALL QUESTIONS CONCERNING THE<br>CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS<br>WARRANT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN<br>ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD<br>TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF. EACH OF THE COMPANY<br>AND THE HOLDER HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE<br>JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW<br>YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE<br>HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY TRANSACTION<br>CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO<br>THE ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS), AND HEREBY<br>IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR<br>PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE<br>JURISDICTION OF ANY SUCH COURT. EACH OF THE COMPANY AND THE HOLDER<br>HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS<br>TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY<br>MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT<br>DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PERSON AT THE ADDRESS IN<br>EFFECT FOR NOTICES TO IT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE<br>GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING<br>CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO<br>SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. EACH OF THE COMPANY<br>AND THE HOLDER HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY.<br>(g) Headings. The headings herein are for convenience only, do not constitute<br>a part of this Warrant and shall not be deemed to limit or affect any of the provisions hereof.
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US-DOCS\165270001.2<br>(h) Severability. If any part or provision of this Warrant is held unenforceable<br>or in conflict with the applicable laws or regulations of any jurisdiction, the invalid or<br>unenforceable part or provisions shall be replaced with a provision which accomplishes, to the<br>extent possible, the original business purpose of such part or provision in a valid and<br>enforceable manner, and the remainder of this Warrant shall remain binding upon the parties<br>hereto.<br>[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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US-DOCS\165270001.2<br>IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by<br>its authorized officer as of the date first indicated above.<br>AEON BIOPHARMA, INC.<br>By:<br>Name:<br>Title:
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US-DOCS\165270001.2<br>SCHEDULE 1<br>FORM OF EXERCISE NOTICE<br>[To be executed by the Holder to purchase shares of Common Stock under the Warrant]<br>Ladies and Gentlemen:<br>(1) The undersigned is the Holder of Warrant No. __ (the “Warrant”) issued by AEON Biopharma, Inc., a Delaware<br>corporation (the “Company”). Capitalized terms used herein and not otherwise defined herein have the respective<br>meanings set forth in the Warrant.<br>(2) The undersigned hereby exercises its right to purchase _____ Warrant Shares pursuant to the Warrant.<br>(3) The Holder intends that payment of the Exercise Price shall be made as (check one):<br>☐ Cash Exercise<br>☐ “Cashless Exercise” under Section 10 of the Warrant<br>(4) If the Holder has elected a Cash Exercise, the Holder shall pay the sum of $ _____ in immediately available<br>funds to the Company in accordance with the terms of the Warrant.<br>(5) Pursuant to this Exercise Notice, the Company shall deliver to the Holder Warrant Shares determined in<br>accordance with the terms of the Warrant. The Warrant Shares shall be delivered (check one):<br>☐ to the following DWAC Account Number: _______________________________<br>☐ in book-entry form via a direct registration system<br>☐ by physical delivery of a certificate to: ______________________________________________________<br>_______________________________________________________<br>☐ in restricted book-entry form in the Company’s share register<br>(6) By its delivery of this Exercise Notice, the undersigned represents and warrants to the Company that in giving<br>effect to the exercise evidenced hereby the Holder (i) the Holder is an “accredited investor” as defined in Regulation<br>D promulgated under the Securities Act of 1933, as amended and (ii) will not beneficially own in excess of the<br>number of shares of Common Stock (as determined in accordance with Section 13(d) of the Securities Exchange Act<br>of 1934, as amended) permitted to be owned under Section 11(a) of the Warrant to which this notice relates.<br>Dated:<br>Name of Holder:<br>By:<br>Name:<br>Title:<br>(Signature must conform in all respects to name of Holder as specified on the face of the Warrant)
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